▇ ▇ ▇ ▇ ▇ ▇ ▇ ▇ LIMITED LIABILITY PARTNERSHIP
C H A N C E
CONFORMED COPY
TURQUOISE CARD BACKED SECURITIES PLC
as Issuer
HSBC BANK PLC
as Principal Paying Agent, UK Registrar, UK Transfer Agent,
Agent Bank and Exchange Agent
HSBC BANK USA, NATIONAL ASSOCIATION
as Paying Agent, US Registrar and US Transfer Agent
and
LAW DEBENTURE TRUST COMPANY OF NEW YORK
Note Trustee
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AGENCY AGREEMENT
RELATING TO
TURQUOISE FUNDING MEDIUM TERM NOTE
PROGRAMME
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CONTENTS
CLAUSE PAGE
SECTION A INTERPRETATION.......................................................3
1. Interpretation..........................................................3
SECTION B APPOINTMENT OF AGENTS................................................6
2. Appointment Of The Agents...............................................6
SECTION C THE NOTES............................................................9
3. The Notes...............................................................9
SECTION D TRANSFER OF NOTES...................................................12
4. Transfers Of Notes.....................................................12
5. Replacement Note Certificates..........................................12
SECTION E PAYMENTS............................................................14
6. Payments To The Principal Paying Agent.................................14
7. Payments To Note Certificate Holders...................................15
8. Miscellaneous Duties Of The Agents.....................................18
SECTION F FEES AND EXPENSES...................................................21
9. Fees And Expenses......................................................21
SECTION G APPOINTMENT AND CHANGE IN AGENTS....................................22
10. Terms Of Appointment...................................................22
11. Termination Of Appointment.............................................23
12. Currency Conversion....................................................26
SECTION I MISCELLANEOUS.......................................................28
13. Time...................................................................28
Schedule 1 SPECIFIED OFFICES OF THE AGENTS..............................29
Schedule 2 NOTICE OF APPOINTMENT OF AGENT...............................30
Schedule 3 FORM OF AGENT BANK APPOINTMENT LETTER........................31
THIS AGREEMENT is made on 23 May 2006
BETWEEN
(1) TURQUOISE CARD BACKED SECURITIES PLC, a public limited company
incorporated in England and Wales (registered number 5506646) whose
registered office is at c/o Wilmington Trust SP Services (London)
Limited, Tower 42 (Level 11), ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (the
"ISSUER");
(2) HSBC BANK PLC, acting through its office at ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇
▇▇▇ as principal paying agent, registrar, transfer agent, agent bank and
exchange agent (in such respective capacities as the "PRINCIPAL PAYING
AGENT", the "UK REGISTRAR", the "UK TRANSFER AGENT", the "AGENT BANK"
and the "EXCHANGE AGENT");
(3) HSBC BANK USA, NATIONAL ASSOCIATION acting through its office at ▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ as paying agent, registrar and transfer
agent (in such respective capacities as the "PAYING AGENT", "US
REGISTRAR" and "US TRANSFER AGENT" (and together with: (i) the Principal
Paying Agent, the "PAYING AGENT"; (ii) the UK Registrar, the "REGISTRAR"
and (iii) the UK Transfer Agent, the "TRANSFER AGENT")); and
(4) LAW DEBENTURE TRUST COMPANY OF NEW YORK, acting through its New York
branch whose principal place of business is at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ - 31st
floor, New York, New York 10017 as note trustee (the "NOTE TRUSTEE"),
which expression shall include such company and all other persons for
the time being acting as the trustee or trustees under the Note Trust
Deed.
WHEREAS
(A) The Issuer has established a medium term note programme (the
"PROGRAMME") for the issuance of series of notes from time to time (the
"NOTES") as set out in the Note Trust Deed and the relevant Note Trust
Deed Supplement.
(B) Each Series will be constituted by, be subject to, and have the benefit
of the Note Trust Deed and the applicable Note Trust Deed Supplement.
(C) Notes issued in accordance with the Programme will be secured in
accordance with the Note Trust Deed and the relevant Note Trust Deed
Supplement executed on or about the time of each such issuance.
(D) Notes issued under the Programme will initially be represented in
registered form in an Authorised Denomination.
(E) The Notes of each Class and Sub-Class of each Series will be represented
by one or more Global Note Certificates and will be registered in the
name of a nominee for a common depositary of Euroclear or Clearstream,
or as applicable, DTC or its nominee. Beneficial interests in the Global
Note Certificates will only be exchangeable for Individual Note
Certificates in the limited circumstances specified in the Note Trust
Deed and the relevant Note Trust Deed Supplement and such Global Note
Certificates.
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(F) Notes may be issued on a listed basis in accordance with the relevant
Prospectus Supplement/Final Terms. The Issuer will make applications for
certain Series of the Notes issued under the Programme to be admitted to
listing in accordance with the relevant Prospectus Supplement/Final
Terms.
(G) The parties to this Agreement wish to record certain arrangements, which
they have made in relation to payments in respect of the Notes.
IT IS AGREED as follows:
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SECTION A
INTERPRETATION
1. INTERPRETATION
1.1 DEFINITIONS
Unless otherwise defined in this Agreement or the context requires
otherwise, words and expressions used in this Agreement shall have the
meanings and constructions ascribed to them in the Master Definitions
Schedule set out in Schedule 1 (Master Definitions Schedule) of the
Issuer Master Framework Agreement which is dated on or about the date of
this Agreement and signed for the purpose of identification by, amongst
others, each of the parties to this Agreement.
1.2 INCORPORATION OF COMMON TERMS
Except as provided below, the Common Terms apply to this Agreement,
where applicable, and shall be binding on the parties to this Agreement
as if set out in full in this Agreement.
1.3 AMENDMENT TO COMMON TERMS
The Common Terms are, for the purposes of this Agreement incorporated
and amended as follows:
1.3.1 Paragraph 1 (Further Assurance) of the Common Terms applies to
this Agreement as if set out in full in this Agreement, and as
if the Issuer were the Obligor and each Agent and the Note
Trustee were an Obligee for the purposes of such Paragraph.
1.3.2 Limited recourse and non-petition
The provisions of Paragraph 8 (Non-Petition) of the Common
Terms apply to this Agreement as if set out in full in this
Agreement.
1.4 ADDITIONAL DEFINITIONS
"REGULATIONS" means the regulations concerning the transfer of Notes as
the same may from time to time be promulgated in accordance with Clause
8.9 (Regulations for the Duties of Transfer Agents and the Registrars)
of this Agreement.
"REGULATION S NOTE" means a Note represented by a Regulation S Note
Certificate.
"REGULATION S NOTE CERTIFICATE" means a Regulation S Global Note
Certificate or a Regulation S Individual Note Certificate.
"RULE 144A NOTE" means a Note represented by a Rule 144A Note
Certificate.
"RULE 144A NOTE CERTIFICATE" means a Rule 144A Global Note Certificate
or a Rule 144A Individual Note Certificate.
"SEC-REGISTERED NOTE" means a Note represented by a SEC-registered Note
Certificate.
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"SEC-REGISTERED NOTE CERTIFICATE" means an SEC-registered Global Note
Certificate or an SEC-registered Individual Note Certificate.
"UK REGISTER" means in respect of a Series of Notes, the register
maintained by the UK Registrar for: (i) the Regulation S Notes of such
Series and/or (ii) the SEC-registered Notes of such Series that are
denominated in Euro or Sterling, each in accordance with Clause 4.1
(Maintenance of a Register) of this Agreement.
"US REGISTER" means in respect of a Series of Notes, the register
maintained by the US Registrar for: (i) the Rule 144A Notes of such
Series and/or (ii) the SEC-registered Notes of such Series that are
denominated in US Dollars, each in accordance with Clause 4.1
(Maintenance of a Register) of this Agreement.
1.5 CONFLICT WITH COMMON TERMS
If there is any conflict between the provisions of the Common Terms and
the provisions of this Agreement, the provisions of this Agreement shall
prevail, save for where any provision of this Agreement relates to VAT,
in which case the relevant provision of the Common Terms shall prevail.
1.6 GOVERNING LAW AND JURISDICTION
This Agreement and all matters arising from or connected with it shall
be governed by English law in accordance with Paragraph 26 (Governing
Law) of the Common Terms. Paragraph 27 (Jurisdiction) of the Common
Terms applies to this Agreement as if set out in full in this Agreement.
1.7 REPRESENTATIONS, WARRANTIES AND COVENANTS
The Issuer gives the representations, warranties and covenants on the
terms set out in Schedule 4 (Issuer's Representations and Warranties)
and Schedule 5 (Issuer Covenants) of the Issuer Master Framework
Agreement.
1.8 INTERPRETATION - TRANSFER AGENT
Under this Agreement, the expression "Transfer Agent" shall mean:
1.8.1 the UK Transfer Agent in relation to: (i) any Regulation S
Note or Regulation S Note Certificate and/or (ii) any
SEC-Registered Note or SEC-Registered Note Certificate that is
denominated in Euro or Sterling; and
1.8.2 the US Transfer Agent in relation to: (i) any Rule 144A Note
or Rule 144A Note Certificate and/or (ii) any SEC-Registered
Note or SEC-Registered Note Certificate that is denominated in
US Dollars.
1.9 INTERPRETATION - REGISTRAR
Under this Agreement, the expression "Registrar" shall mean:
1.9.1 the UK Registrar in relation to: (i) any Regulation S Note or
Regulation S Note Certificate and/or (ii) any SEC-Registered
Note or SEC-Registered Note Certificate that is denominated in
Euro or Sterling; and
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1.9.2 the US Registrar in relation to: (i) any Rule 144A Note or
Rule 144A Note Certificate and/or (ii) any SEC-Registered Note
or SEC-Registered Note Certificate that is denominated in US
Dollars.
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SECTION B
APPOINTMENT OF AGENTS
2. APPOINTMENT OF THE AGENTS
2.1 APPOINTMENT
2.1.1 GENERAL: The Issuer (and the Note Trustee for the purposes of
Clause 8.7 (Forms of Proxy instructions) below) appoints on a
several basis each of the Principal Paying Agent, the Paying
Agent, the Agent Bank and the Exchange Agent acting through
its respective Specified Office as its agent in relation to
each Series of Notes in respect of which it is named in the
relevant Prospectus Supplement/Final Terms for the purposes
specified in this Agreement and in the Conditions and all
matters incidental thereto.
2.1.2 REGISTRAR: The Issuer (and the Note Trustee for the purposes
of Clause 8.7 (Forms of Proxy instructions) below) appoints on
a several basis:
(a) the UK Registrar as its agent in relation to each Series
of Notes in respect of which it is named in the relevant
Prospectus Supplement/Final Terms for the purposes
specified in this Agreement and in the Conditions and
all matters incidental thereto, BUT ONLY to the extent
that the Notes of such Series are: (i) Regulation S
Notes or (ii) SEC-Registered Notes that are denominated
in Sterling or Euro; and
(b) the US Registrar as its agent in relation to each Series
of Notes in respect of which it is named in the relevant
Prospectus Supplement/Final Terms for the purposes
specified in this Agreement and in the Conditions and
all matters incidental thereto, BUT ONLY to the extent
that the Notes of such Series are: (i) Rule 144A Notes
or (ii) SEC-Registered Notes that are denominated in US
Dollars.
2.1.3 TRANSFER AGENT: The Issuer (and the Note Trustee for the
purposes of Clause 8.7 (Forms of Proxy instructions) below)
appoints on a several basis:
(a) the UK Transfer Agent as its agent in relation to each
Series of Notes in respect of which it is named in the
relevant Prospectus Supplement/Final Terms for the
purposes specified in this Agreement and in the
Conditions and all matters incidental thereto, BUT ONLY
to the extent that the Notes of such Series are: (i)
Regulation S Notes or (ii) SEC-Registered Notes that are
denominated in Sterling or Euro; and
(b) the US Transfer Agent as its agent in relation to each
Series of Notes in respect of which it is named in the
relevant Prospectus Supplement/Final Terms for the
purposes specified in this Agreement and in the
Conditions and all matters incidental thereto, BUT ONLY
to the extent that the Notes of such Series are: (i)
Rule 144A Notes or (ii) SEC-Registered Notes that are
denominated in US Dollars.
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2.2 ACCEPTANCE OF APPOINTMENT BY PAYING AGENTS
Each of the Principal Paying Agent and the Paying Agent accepts its
appointment as agent of the Issuer (and the Note Trustee for the
purposes of Clause 7.7 (Agents to Act for Note Trustee) below) in
relation to the relevant Series of Notes and shall comply with the
provisions of this Agreement and the Conditions and all matters
incidental thereto.
2.3 ACCEPTANCE OF APPOINTMENT BY AGENT BANK
2.3.1 The Agent Bank accepts its appointment as agent of the Issuer
(and the Note Trustee for the purposes of Clause 7.7 (Agents
to Act for Note Trustee) below) in accordance with the
provisions of the Conditions and this Agreement and all
matters incidental thereto.
2.3.2 The Agent Bank agrees to comply with the provisions of
Condition 7 (Interest) and this Agreement. In particular, the
Agent Bank shall:
(a) as soon as practicable after determining the rate of
interest applicable to a Class or Sub-Class of Notes for
any period pursuant to the Conditions, notify the
Issuer, the Paying Agents, the Account Bank Operator and
the Note Trustee thereof;
(b) publish the rate of interest, interest amount and
relative interest payment date in accordance with
Condition 7 (Interest); and
(c) maintain records of the quotations obtained, and all
rates determined, by it and upon written request make
such records available for inspection at all reasonable
times by the Issuer, the Paying Agents, the Registrars,
the Transfer Agents, the Account Bank Operator and the
Note Trustee.
2.3.3 The Principal Paying Agent acknowledges and agrees that it
shall be named in the relevant Prospectus Supplement/Final
Terms as Agent Bank in respect of each Series unless the
Dealer (or one of the Dealers) through whom such Notes are
issued has agreed with the Issuer to act as Agent Bank or the
Issuer otherwise agrees to appoint another institution as
Agent Bank by execution of a letter of appointment in
substantially the form of Schedule 3 (Form of Agent Bank
Appointment Letter) attached hereto.
2.4 ACCEPTANCE OF APPOINTMENT BY THE REGISTRARS
Each Registrar accepts its appointment as agent of the Issuer (and the
Note Trustee for the purposes of Clause 7.7 (Agents to Act for Note
Trustee) below) for the purpose, inter alia, of establishing and
maintaining the Register, all in accordance with the provisions of the
Conditions and this Agreement and all matters incidental thereto.
2.5 ACCEPTANCE OF APPOINTMENT BY THE TRANSFER AGENTS
Each Transfer Agent accepts its appointment as agent of the Issuer (and
the Note Trustee for the purposes of Clause 7.7 (Agents to Act for Note
Trustee) below) for the purpose of enabling certain transfers in
connection with any Individual Note Certificates issued by
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the Issuer in relation to a Series, in accordance with the provisions of
the Conditions and this Agreement and all matters incidental thereto.
2.6 ACCEPTANCE OF APPOINTMENT BY EXCHANGE AGENT
The Exchange Agent accepts its appointment as agent of the Issuer (and
the Note Trustee for the purposes of Clause 7.7 (Agents to Act for Note
Trustee) below) for the purposes of exchanging Sterling and Euro amounts
payable to Noteholders holding interest in certain Rule 144A Notes into
Dollar amounts, in accordance with the provisions of the Conditions and
this Agreement and all matters incidental thereto.
2.7 SEVERAL OBLIGATIONS
The obligations of the Agents under this Agreement are several and not
joint.
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SECTION C
THE NOTES
3. THE NOTES
3.1 GLOBAL NOTE CERTIFICATES
Each Global Note Certificate shall:
3.1.1 be in substantially the form set out in Schedule 2 Parts A
through C (Form of Global Note Certificate) of the Note Trust
Deed in respect of each Class and/or Sub-Class of each Series;
and
3.1.2 be executed manually or in facsimile by or on behalf of the
Issuer and authenticated manually by or on behalf of the
Registrar upon receipt of written instruction from the Issuer.
3.2 INDIVIDUAL NOTE CERTIFICATES
Each Individual Note Certificate shall:
3.2.1 be in substantially the form set out in Schedule 3 Parts A
through C (Form of Individual Note Certificate) of the Note
Trust Deed in respect of each Class and/or Sub-Class of each
Series;
3.2.2 be security printed in accordance with all applicable legal
and stock exchange requirements if any;
3.2.3 have a unique certificate number printed thereon;
3.2.4 be executed manually or in facsimile by two directors of the
Issuer and authenticated by or on behalf of an authorised
signatory of the Registrar; and
3.2.5 otherwise be in accordance with the customary practice of the
international Eurobond market.
3.3 SIGNATURES
Any signature on a Note Certificate on behalf of the Issuer shall be
that of a person who at the date of printing of the Note Certificates is
a director of the Issuer notwithstanding that at the time of issue of
any of the Note Certificates he may have ceased for any reason to be the
holder of such office.
3.4 AVAILABILITY
3.4.1 GLOBAL NOTE CERTIFICATES
The Regulation S Global Note Certificates shall be deposited
with and registered in the name of a nominee for a common
depositary of Euroclear and Clearstream. The Rule 144A Global
Notes Certificates shall be deposited with the DTC Custodian
(as custodian for DTC) and registered in the name of Cede &
Co. (as nominee of DTC). The SEC-registered Global Note
Certificates, when denominated in Euro or Sterling, shall be
deposited with and registered in
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the name of a nominee for a common depositary of Euroclear and
Clearstream or, if denominated in US Dollars, shall be
deposited with the DTC Custodian for, and registered in the
name of Cede & Co. as nominee of, DTC.
3.4.2 INDIVIDUAL NOTE CERTIFICATES
If the Issuer is required to deliver Individual Note
Certificates pursuant to the terms of the Global Note
Certificates of a particular Class and/or Sub-Class, the
Issuer shall arrange for such Individual Note Certificates of
such Class and/or Sub-Class to be made available to or to the
order of the relevant Registrar by the later of the expiry of
30 days after the date hereof and the date falling 25 days
after the occurrence of the relevant event as set out in the
Note Trust Deed. Such Individual Note Certificates will be in
registered form each in an Authorised Denomination. The
Individual Note Certificates will be held to the Issuer's
order pending delivery. The Issuer shall also arrange, on
request, for such Individual Note Certificates as are required
to enable each Registrar to perform its obligations under this
Clause 3 (The Notes) to be made available to or to the order
of that Registrar from time to time.
3.5 LISTING OF NOTES
Notes of any Series, on issue, may be listed on a stock exchange in
accordance with the relevant Prospectus Supplement/Final Terms and/or
Note Trust Deed Supplement. The Issuer will advise the Agent Bank, if
such listing is withdrawn or if the Notes become listed on any other
stock exchange.
3.6 CALCULATIONS AND DETERMINATIONS OF AGENT BANK
The Agent Bank shall in respect of each Series in relation to which it
is appointed as such:
3.6.1 Determinations: obtain such quotes and rates and/or make such
determinations, calculations, adjustments, notifications and
publications as may be required to be made by it by the
Conditions at the times and otherwise in accordance with the
Conditions; and
3.6.2 Records: maintain a record of all quotations obtained by it
and of all amounts, rates and other items determined or
calculated by it and upon written request make such records
available for inspection at all reasonable times by the
Issuer, the Paying Agents and the Registrars.
3.7 AUTHORITY TO AUTHENTICATE
Each Registrar or its designated agent is authorised and instructed by
the Issuer to authenticate such Note Certificates as may be required to
be authenticated hereunder by the signature of any of its officers or
any other person duly authorised for the purpose by that Registrar.
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3.8 DUTIES OF THE REGISTRARS
It shall be a term of the appointment of each Registrar that the
Registrar or its designated agent shall:
3.8.1 hold in safe custody all unauthenticated Note Certificates
delivered to it in accordance with sub-clause 3.4.2
(Individual Note Certificates);
3.8.2 ensure that such Note Certificates are authenticated and
delivered only in accordance with the terms hereof, of the
Note Trust Deed and of the Conditions; and
3.8.3 establish and maintain the Register at its Specified Office in
accordance with Clause 4.1 (Maintenance of the Register).
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SECTION D
TRANSFER OF NOTES
4. TRANSFERS OF NOTES
4.1 MAINTENANCE OF THE REGISTER
The Registrar shall maintain the Register in relation to the Notes,
which shall be kept at its Specified Office and upon written request be
made available by the Registrar to the Issuer, the Note Trustee, the
Paying Agents, the Agent Bank and the Transfer Agent for inspection and
for the taking of copies or extracts therefrom at all reasonable times.
The Register shall show the aggregate principal amount, serial numbers
and dates of issue of each Note Certificate, the names and addresses of
the initial holders thereof and the dates of all transfers to, and the
names and addresses of, all subsequent holders thereof, all
cancellations of Note Certificates and all replacements of Note
Certificates.
4.2 REGISTRATION OF TRANSFERS IN THE REGISTER
Each Registrar shall receive requests for the transfer of Notes in
accordance with the Conditions and the Regulations (as defined below)
and shall make the necessary entries in the Register.
4.3 TRANSFER AGENTS TO RECEIVE REQUESTS FOR TRANSFERS OF NOTES
Each Transfer Agent appointed in respect of the relevant Series of Notes
shall receive requests for the transfer of Notes in accordance with the
Conditions and the Regulations (as defined below) and assist, if
required, in the issue of new Note Certificates to give effect to such
transfers and, in particular, upon any such request being duly made,
shall promptly notify the relevant Registrar of:
4.3.1 the aggregate principal amount of the Notes to be transferred;
4.3.2 the name(s) and addresses to be entered on the Register of the
holder(s) of the new Note Certificates to be issued in order
to give effect to such transfer; and
4.3.3 the place and manner of delivery of the new Note Certificates
to be delivered in respect of such transfer,
and shall forward the Note Certificates relating to the Notes to be
transferred (with the relevant form(s) of transfer duly completed) to
the relevant Registrar with such notification.
5. REPLACEMENT NOTE CERTIFICATES
5.1 DELIVERY OF REPLACEMENTS
Each Registrar shall, upon and in accordance with the instructions of
the Issuer (which instructions may, without limitation, include such
terms as to the payment of expenses and as to evidence, security and
indemnity as the Issuer, the Principal Paying Agent and the Registrar
may reasonably require), complete, authenticate and deliver a Note
Certificate as a replacement for any Note Certificate which has been
mutilated or defaced or which is alleged to have been destroyed, stolen
or lost; PROVIDED, HOWEVER, the
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Registrar shall not deliver any Note Certificate as a replacement for
any Note Certificate which has been mutilated or defaced otherwise than
against surrender of the same.
5.2 REPLACEMENTS TO BE NUMBERED
Each replacement Note Certificate delivered hereunder shall bear a
unique serial number.
5.3 CANCELLATION AND DESTRUCTION
Each Registrar shall cancel and destroy each mutilated or defaced Note
Certificate surrendered to it and in respect of which a replacement has
been delivered.
5.4 NOTIFICATION
Each Registrar shall notify the Issuer of the delivery by it in
accordance herewith of any replacement Note Certificate, specifying the
serial number thereof and the serial number (if any and if known) of the
Note Certificate which it replaces and confirming (if such be the case)
that the Note Certificate which it replaces has been cancelled or
destroyed and the Registrar shall as promptly as is practicable, enter
such details in the Register.
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SECTION E
PAYMENTS
6. PAYMENTS TO THE PRINCIPAL PAYING AGENT
6.1 ISSUER TO PAY PRINCIPAL PAYING AGENT
In order to provide for the payment of interest and principal in respect
of each Class and/or Sub-Class of Notes of a Series as the same becomes
due and payable, the Issuer shall pay to the Principal Paying Agent or
otherwise cause it to receive on or before the date on which such
payment becomes due, an amount which is equal to the amount of principal
or interest then falling due in respect of the relevant Notes on such
date.
6.2 MANNER AND TIME OF PAYMENT
Each amount payable by the Issuer under Clause 6.1 (Issuer to pay
Principal Paying Agent) shall be paid unconditionally by credit transfer
in the relevant currency in same day/immediately available, freely
transferable, cleared funds not later than 10.00 a.m. (London time)(in
the case of Sterling Notes), 12.00 a.m. (noon) (Brussels time) (in the
case of Euro Notes) or 10.00 a.m. (New York City time) (in the case of
Dollar Notes) on the relevant day to such account with such bank as the
Principal Paying Agent has by notice to the Issuer and the Note Trustee
specified from time to time for the purpose. The Issuer shall, before
2.00 p.m. (London time) (in the case of Sterling Notes), 10.00 a.m.
(Brussels time) (in the case of Euro Notes) or 10.00 a.m. (New York City
time) ( in the case of Dollar Notes) on the second Business Day before
the due date of each payment by it under Clause 6.1 (Issuer to pay
Principal Paying Agent), notify the Principal Paying Agent by
authenticated SWIFT message (or such other method as shall be agreed) of
its irrevocable payment instructions to such bank through which such
payment to the Principal Paying Agent is to be made.
6.3 EXCLUSION OF LIENS AND INTEREST
The Agents shall not:
6.3.1 exercise any lien, right of set-off or similar claim in
respect of monies received by the Principal Paying Agent in
connection with its activities hereunder;
6.3.2 be liable to any person for interest thereon; and
6.3.3 be obliged to hold any funds received by them hereunder in a
segregated account or accounts.
6.4 APPLICATION BY PRINCIPAL PAYING AGENT
The Principal Paying Agent shall apply (or direct or cause the
application of) each amount paid to it under this Clause 6 (Payments to
the Principal Paying Agent) in accordance with Clause 7 (Payments to
Note Certificate Holders) in respect of the Note Certificates (if any)
and shall not be obliged to repay any such amount other than as provided
herein or unless the claim for the relevant payment becomes void under
the Conditions and in particular Condition 12 (Prescription) in which
event it shall repay to the Issuer such portion of such amount as
relates to such payment by paying the same by
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credit transfer into such account with such bank as the Issuer has by
notice to the Principal Paying Agent specified for the purpose.
6.5 FAILURE TO NOTIFY PAYMENT INSTRUCTIONS
If the Principal Paying Agent has not, by 4.30 p.m. (London Time) on the
second Business Day before the due date of any payment to it under
Clause 6.1 (Issuer to pay Principal Paying Agent), received notification
of the relevant irrevocable payment instructions referred to in Clause
6.2 (Manner and time of payment) it shall forthwith notify the Paying
Agent, the Note Trustee and the Issuer. If the Principal Paying Agent
subsequently receives notification of such payment instructions, it
shall forthwith notify the other Paying Agents, the Note Trustee and the
Issuer.
6.6 NOTIFICATION OF PARTIAL REDEMPTIONS
In the event there is to be any partial redemption of a Series of Notes
pursuant to Condition 8 (Redemption and Purchase) on any Interest
Payment Date, the Issuer shall give each of the Paying Agents, the Agent
Bank, the Principal Paying Agent and any Swap Counterparty four Business
Days notice of the amount of the Principal Amount Outstanding of each
Note to be redeemed on such Interest Payment Date. The Agent Bank shall
upon receipt of such information (and any notification under clause 8.10
hereunder) make the relevant determinations required under Condition 8
(Redemption and Purchase).
7. PAYMENTS TO NOTE CERTIFICATE HOLDERS
7.1 PAYMENTS BY PAYING AGENTS
Each Paying Agent acting through its Specified Office shall make
payments of interest and principal in respect of the Notes, in the case
of a Swap Agreement which has been terminated without replacement after
exchanging any amounts to the relevant currency of the Notes at a spot
rate where necessary, in accordance with the Conditions, PROVIDED,
HOWEVER, that:
7.1.1 a Paying Agent shall not be obliged (but shall be entitled) to
make payments of interest or principal in respect of a Series
of Notes:
(a) if it has not received the full amount of any payment
due to it in respect of such Series under Clause 6.1
(Issuer to pay Principal Paying Agent); or
(b) if the Principal Paying Agent has given notice in
accordance with Clause 6.5 (Failure to notify payment
instructions) that the relevant irrevocable payment
instructions have not been received, unless it has
subsequently received such payment instructions;
7.1.2 each Paying Agent shall cancel each Note Certificate against
surrender of which it has made full payment and shall, if
necessary, deliver each Note Certificate so cancelled by it
to, or to the order of, the Registrar; and
7.1.3 a Paying Agent shall notify the Note Trustee forthwith in the
event that it does not, on or before the due date for any
payment of principal or interest in respect
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of any of the Notes, receive unconditionally the full amount
in the relevant currency in relation to such Notes and/or
there are not sufficient funds in such currency available to
the Paying Agent to discharge the amount of the monies payable
thereon in accordance with the Conditions and/or the
provisions of the Note Trust Deed on such due date.
7.2 PAYMENTS IN RESPECT OF NOTE CERTIFICATES
7.2.1 Each Registrar will notify the Principal Paying Agent, not
later than five Business Days after each day that falls on the
fifteenth day before an Interest Payment Date ("RECORD DATE"),
whether any Noteholder has elected to receive payments by
transfer to a bank account and, if so, the relevant details of
such bank account. For those Noteholders who have chosen not
to receive payments by transfer to a bank account, the
Registrar will notify the Principal Paying Agent of the
address of such Noteholder appearing in the Register to which
cheques should be posted.
7.2.2 The Paying Agent shall make or shall procure payments of
interest and principal in respect of the Notes in accordance
with the Conditions by mailing a cheque drawn in the relevant
currency of the Notes on a bank in New York, in the case of a
cheque drawn in US Dollars, or in all other cases London,
respectively to the address of the Noteholder appearing in the
Register on the Record Date or, if the Noteholder has elected
to do so, by transfer to their specified account denominated
in the relevant currency of the Note (as the case may be).
7.3 EXCLUSION OF LIENS AND COMMISSIONS
No Paying Agent shall exercise any lien, right of set-off or similar
claim against any person to whom it makes any payment under Clause 7.1
(Payments by Paying Agents) in respect thereof, nor shall any commission
or expense be charged by it to any such person in respect thereof.
7.4 APPROPRIATION BY PRINCIPAL PAYING AGENT
If the Principal Paying Agent makes any payment in accordance with
Clause 7.1 (Payments by Paying Agents), it shall be entitled to
appropriate for its own account out of the funds received by it under
Clause 6.1 (Issuer to pay Principal Paying Agent) an amount equal to the
amount so paid by it.
7.5 REIMBURSEMENT BY ISSUER
If the Principal Paying Agent makes a payment in respect of any Notes at
a time at which the Principal Paying Agent has not received the full
amount of the relevant payment due to it from the Issuer under Clause
6.1 (Issuer to pay Principal Paying Agent), the Issuer shall from time
to time on demand pay to the Principal Paying Agent:
7.5.1 the amount so paid out by the Principal Paying Agent and not
previously reimbursed to it; and
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7.5.2 an amount sufficient to indemnify the Principal Paying Agent
against any cost, loss or expense which it incurs as a result
of making such payment and not receiving reimbursement of such
amount until the date of reimbursement of such amount,
PROVIDED, HOWEVER, that any payment made under sub-clause 7.5.1 above
shall satisfy pro tanto the Issuer's obligations under Clause 6.1
(Issuer to pay Principal Paying Agent).
7.6 PARTIAL PAYMENTS
If at any time and for any reason the Principal Paying Agent makes a
partial payment in respect of any Note, each Registrar shall annotate
the Register with such details. In addition, if, on any due date for
payment, less than the full amount of any principal or interest is paid
in respect of any Notes, the Registrar will note on the Register a
memorandum of the amount and date of any payment then made and, if the
relevant Global Note Certificate or any Individual Note Certificate is
presented for payment in accordance with the Conditions and no payment
is then made, the date of presentation of the Global Note Certificate or
(as the case may be) such Individual Note Certificate.
7.7 AGENTS TO ACT FOR NOTE TRUSTEE
At any time after an Event of Default or Potential Event of Default in
respect of a Series of Notes shall have occurred, which shall not have
been waived by the Note Trustee or remedied to its satisfaction or at
any time after Individual Note Certificates have not been issued when so
required in accordance with the terms of the Note Trust Deed or the Note
Trustee shall have received any money which it proposes to pay under the
Note Trust Deed to the Noteholders or the relevant Notes shall otherwise
have become due and repayable:
7.7.1 the relevant Agent shall, if so required by notice in writing
given by the Note Trustee to the Issuer and the relevant
Agent(s):
(a) thereafter act as the relevant Agent, as the case may
be, of the Note Trustee in relation to their duties for
the Notes of that Series under the terms of the Note
Trust Deed and the relevant Note Trust Deed Supplement
on the terms mutatis mutandis contained herein (save
that the Note Trustee's liability under any provisions
herein contained for the indemnification of any Agent
shall be limited to the amount for the time being held
by the Note Trustee on the trusts of the Note Trust Deed
and the relevant Note Trust Deed Supplement which is
available to be applied by the Note Trustee for such
purpose in relation to such Series) and thereafter hold
all Note Certificates and all sums, documents and
records held by them in their capacities as Agent or in
respect of the Notes of that Series on behalf of the
Note Trustee; and/or
(b) deliver up all Note Certificates and all sums, documents
and records held by them in respect of the Notes of that
Series to the Note Trustee or as the Note Trustee shall
direct in such notice,
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PROVIDED THAT such notice shall be deemed not to apply to any
document or record which the relevant Agent is obliged not to
release by any applicable law or regulation.
8. MISCELLANEOUS DUTIES OF THE AGENTS
8.1 MAINTENANCE OF RECORDS
Each of the Agents shall maintain records of all documents received by
it in connection with its duties hereunder and shall upon written
request make such records available for inspection at all reasonable
times by the Issuer, the Note Trustee and the other Agents and, in
particular each Registrar shall:
(a) maintain a record of all Note Certificates delivered hereunder
and of their redemption, payment, cancellation, mutilation,
defacement, alleged destruction, theft, loss and replacement;
(b) upon written request, make such records available for
inspection at all reasonable times by the Issuer, the Note
Trustee and the other Agents; and
(c) give to the Note Trustee and the other Agents such further
information with regard to its activities hereunder as may
reasonably be required of them for the proper carrying out of
their respective duties.
8.2 CANCELLATION
The Issuer may from time to time deliver to, or to the order of, the
relevant Registrar, Note Certificates for cancellation whereupon the
Registrar shall cancel the same and shall make the corresponding entries
in the Register.
8.3 NOTES IN ISSUE
As soon as practicable (or in any event within three months) after each
date for the payment of principal or interest in relation to the Notes,
after each date on which Note Certificates are cancelled in accordance
with Clause 8.2 (Cancellation) and after the date on which the Notes
fall due for redemption in accordance with the Conditions, each
Registrar shall notify the Issuer, the Paying Agents and the Note
Trustee (on the basis of the information available to it) of the number
of any Note Certificates against surrender of which payment in full has
been made and of the number of any Note Certificates (and the names and
addresses of the holders thereof) which have not yet been surrendered
for payment and the details of all Notes redeemed and cancelled.
8.4 FORWARDING OF COMMUNICATIONS
Each Paying Agent shall promptly forward to the Issuer, the Note Trustee
and if not received by the Principal Paying Agent, the Principal Paying
Agent, a copy of any notice or communication addressed to the Issuer by
any Noteholder which is received by such Paying Agent. Each Paying Agent
or Registrar shall promptly notify the Principal Paying Agent in the
event that it receives any such notice or communication and promptly
forward such notice or communication to the Principal Paying Agent.
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8.5 PUBLICATION OF NOTICES
Each Registrar shall, upon and in accordance with the instructions, and
at the expense, of the Issuer but not otherwise, arrange for the
publication in accordance with Condition 17 (Notices) of the Notes of
any notice which is to be given to the Noteholders and shall promptly
supply two copies thereof to the Note Trustee and a copy thereof to each
other Agent.
8.6 DESTRUCTION
Each Registrar may destroy each Note Certificate delivered to or
cancelled by it in accordance with Clause 10.2 (Extent of duties), in
which case it shall promptly furnish the Issuer and the Note Trustee
with a certificate as to such destruction and specifying the reason for
such destruction and the certificate or serial numbers of the Note
Certificates so destroyed.
8.7 FORMS OF PROXY INSTRUCTIONS
Each Registrar shall, at the request of any Noteholder in accordance
with the Note Trust Deed, make available uncompleted and unexecuted
forms of proxy in a form and manner which comply with the provisions of
Schedule 3 of the Note Trust Deed. The Registrar shall keep a full
record of completed and executed forms of proxy received by it and will
give to the Issuer, not less than twenty-four hours before the time
appointed for any Meeting or adjourned Meeting, full particulars of all
duly completed forms of proxy received by it in respect of such Meeting
or adjourned Meeting.
8.8 ADDITIONAL DUTIES
Each Registrar shall carry out such other acts as may reasonably be
necessary to give effect to the relevant Conditions, this Agreement and
the Regulations. In carrying out its functions, each Registrar shall act
in accordance with the terms of this Agreement, the Regulations and the
relevant Conditions.
8.9 REGULATIONS FOR THE DUTIES OF THE TRANSFER AGENTS AND THE REGISTRARS
The Issuer may, from time to time, with the approval of the Principal
Paying Agent, the Transfer Agents, the Registrars and the Note Trustee
(such approval in no case to be unreasonably withheld) promulgate
reasonable regulations concerning the carrying out of their respective
duties and the forms and evidence to be proved (the "REGULATIONS").
8.10 NOTIFICATION OF THE PRINCIPAL AMOUNT OUTSTANDING
Each Registrar shall, on the third Business Day prior to each due date
for payment in respect of the Notes, notify the Principal Paying Agent
of the aggregate Principal Amount Outstanding of Notes as evidenced by
the Global Note Certificate or Individual Note Certificates.
8.11 COPY DOCUMENTS AVAILABLE FOR INSPECTION
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Each Registrar shall make copies of this Agreement, the Note Trust Deed,
each Note Trust Deed Supplement and the Regulations available upon
reasonable notice for inspection at its Specified Office at all
reasonable times.
8.12 PROCEEDS HELD ON TRUST
Each Paying Agent shall hold on trust for the benefit of the relevant
Noteholders or the Note Trustee all monies held by such Paying Agent for
the payment of principal or interest on any of the Notes.
8.13 NOTICE OF DEFAULT
Each Paying Agent shall give the Note Trustee notice of any default by
the Issuer in the making of any payment of principal or interest on any
of the Notes.
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SECTION F
FEES AND EXPENSES
9. FEES AND EXPENSES
9.1 FEES
The Issuer shall pay to the Principal Paying Agent for its own account
and for the account of the Agents such fees on a Series-by-Series basis
as may have been agreed in writing between the Issuer and the relevant
Agent in respect of the services of the Agents hereunder.
9.2 FRONT-END EXPENSES
The Issuer shall after receipt of an account of such expenses reimburse
the Principal Paying Agent for its own account and for the account of
the Agents for all reasonable out-of-pocket expenses properly incurred
by them in the negotiation, preparation and execution of this Agreement
and for its own account for all reasonable out-of-pocket expenses
(including, without limitation, legal fees and any publication,
advertising, communication, courier, postage and other out-of-pocket
expenses) properly incurred in connection with its services hereunder.
The Principal Paying Agent will be responsible for distributing the
relevant amounts to the Agents and the relevant expenses of Agents and
the Issuer shall not be responsible for the apportionment of such
payments between the Agents.
9.3 TAXES AND EXPENSES OCCASIONED BY DEFAULT
The Issuer shall pay all stamp, registration and other similar taxes and
duties (including any interest and penalties thereon or in connection
therewith) which are payable upon or in connection with the execution
and delivery of this Agreement and shall indemnify each Agent against
any claim, demand, action, liability, damages, cost, loss or expense
(including, without limitation, legal fees) which it incurs as a result
or arising out of or in relation to any failure to pay or delay in
paying any of the same.
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SECTION G
APPOINTMENT AND CHANGE IN AGENTS
10. TERMS OF APPOINTMENT
10.1 RIGHTS AND POWERS
Each Agent, or, in relation to sub-clauses 10.1.2 and 10.1.3, the Agent
Bank, may, in connection with its services hereunder:
10.1.1 except as ordered by a court of competent jurisdiction or as
required by law (whether or not the relevant Note shall be
overdue and notwithstanding any notice to the contrary or
writing shown thereon or any notice of previous loss or theft
or of trust or other interest therein) be entitled to treat
the person registered in the Register as the absolute owner of
such Note for all purposes and make payments thereon
accordingly PROVIDED THAT where the Registrar has notified the
Issuer of the presentation or surrender of any Note in
accordance with sub-clause 7.1.2, it shall not make payment
thereon until so instructed by the Issuer;
10.1.2 rely upon the terms of any notice, communication or other
document believed by it to be genuine;
10.1.3 engage, at the expense of the Issuer (pursuant to Clause 10.2
(Extent of duties)), the advice or services of any lawyers or
other experts whose advice or services it considers necessary
and rely upon any advice so obtained (and such Agent shall be
protected and shall incur no liability as against the Issuer
in respect of any action taken, or suffered to be taken, in
accordance with such advice except to the extent that such
liability arises out of any fraud, wilful default or
negligence on the part of any such Agent or its officers,
directors or employees);
10.1.4 assume that the terms of each Note Certificate as issued are
correct;
10.1.5 refer any question relating to the ownership of any Note or
the adequacy or sufficiency of any evidence supplied in
connection with the replacement, transfer or exchange of any
Note Certificate to the Issuer for determination by the Issuer
and conclusively rely upon any determination so made; and
10.1.6 whenever in the administration of this Agreement it shall deem
it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, in the
absence of bad faith, fraud or negligence on its part, accept
a certificate signed by any person duly authorised on behalf
of the Issuer as to any fact or matter prima facie within the
knowledge of the Issuer as sufficient evidence thereof.
10.2 EXTENT OF DUTIES
Each Agent shall only be obliged to perform the duties set out herein
and such other duties as are necessarily incidental thereto. No Agent
shall (i) be under any fiduciary duty towards any person other than the
Issuer or, to the extent provided for in the Conditions or in Clause 6.1
(Issuer to pay Principal Paying Agent), the Note Trustee, (ii)
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(except to the extent that such liability arises out of any fraud,
wilful default or negligence on the part of any such Agent or its
officers, directors or employees) be responsible for or liable in
respect of any act or omission of any other person including, without
limitation, any other Agent or (iii) be under any obligation towards any
person other than the Issuer, the other Agents and the Note Trustee.
10.3 FREEDOM TO TRANSACT
Each Agent may purchase, hold and dispose of a beneficial interest in a
Note and may enter into any transaction (including, without limitation,
any depositary, trust or agency transaction) with any holders or owners
of any Notes or with any other party hereto in the same manner as if it
had not been appointed as the agent of the Issuer or the Note Trustee in
relation to the Notes.
10.4 INDEMNITY
The Issuer shall indemnify each Agent against any claim, demand, action,
liability, damages, cost, loss or expense (including, without
limitation, legal fees) which it incurs in respect of a particular
Series, other than such costs and expenses as are (i) separately agreed
to be reimbursed out of the fees payable under Clause 11 (Termination of
Appointment); or (ii) incurred by reason of the relevant Agent's own
negligence, fraud or wilful default (or that of its directors, officers
or employees).
10.5 AGENT COMMITMENTS
No provisions of this Agreement shall require any Agent to expend its
own funds or assume a financial commitment to a person not party to this
Agreement (other than in the ordinary course of its business) in the
performance of any of its duties hereunder, or in the exercise of any of
its rights or powers hereunder, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against
such commitment is not reasonably assured to it and, in particular, no
Agent shall be obliged to incur any expenditure in connection with the
publication of any notices required to be given hereunder unless the
Issuer has given its prior approval.
11. TERMINATION OF APPOINTMENT
11.1 RESIGNATION
Any Agent may resign its appointment upon giving not less than 60 days'
written notice to the Issuer (with a copy to the Note Trustee and, in
the case of an Agent other than the Principal Paying Agent, to the
Principal Paying Agent) PROVIDED, HOWEVER, that:
11.1.1 if such resignation would otherwise take effect less than 10
days before the maturity date of a Series of Notes or any
Interest Payment Date in relation to a Series of Notes, it
shall not take effect until the first day following such
maturity date; and
11.1.2 such resignation shall not take effect until a successor
(approved in writing by the Note Trustee) has been duly
appointed by the Issuer and notice of such appointment has
been given to the Noteholders.
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11.2 REVOCATION
The Issuer may revoke its appointment of any Agent as its agent in
relation to the Notes by giving not less than 60 days' notice to such
Agent (with a copy to the Note Trustee and, in the case of an Agent
other than the Principal Paying Agent) PROVIDED, HOWEVER, that in the
case of the Principal Paying Agent, the Agent Bank, the Registrars, the
Transfer Agents, the Exchange Agent, the Paying Agent with its Specified
Office in London or the only remaining Paying Agent with its Specified
Office outside the United Kingdom, such revocation shall not take effect
until a successor has been duly appointed with the prior written consent
of the Note Trustee and notice of such appointment has been given to the
Noteholders.
11.3 AUTOMATIC TERMINATION
The appointment of any Agent shall terminate forthwith if:
11.3.1 a secured party takes possession, or a receiver, manager or
other similar officer is appointed, of the whole or any part
of the undertaking, assets and revenues of such Agent;
11.3.2 such Agent admits in writing its insolvency or inability to
pay its debts as they fall due;
11.3.3 an administrator or liquidator or any similar official of such
Agent or the whole or any part of the undertaking, assets and
revenues of such Agent is appointed (or application for any
such appointment is made);
11.3.4 such Agent takes any action for a readjustment or deferment of
any of its obligations or makes a general assignment or an
arrangement or composition with or for the benefit of its
creditors or declares a moratorium in respect of any of its
indebtedness;
11.3.5 an order is made or an effective resolution is passed for the
winding up of such Agent; or
11.3.6 any event occurs which has an analogous effect to any of the
foregoing.
On the occurrence of any of the above the relevant Agent shall forthwith
notify the Issuer and the remaining Agents and the Issuer shall give
notice thereof to the Note Trustee and to the Noteholders in accordance
with Condition 13 (Note Trustee and Agents).
11.4 ADDITIONAL AND SUCCESSOR AGENTS
The Issuer may with the prior written approval of the Note Trustee
appoint additional or successor Paying Agents, a successor Agent Bank,
additional or successor Transfer Agents a successor Exchange Agent or
successor Registrars PROVIDED THAT such additional or successor Paying
Agent, Agent Bank, Transfer Agent, Exchange Agent or Registrar shall
execute and deliver to its predecessor (if any), the Issuer, the Note
Trustee and (unless its predecessor is the Principal Paying Agent) the
Principal Paying Agent an instrument accepting appointment on the terms
and conditions of this Agreement and the Issuer shall forthwith give
notice of any such appointment to the continuing Agents and
- 24 -
the Noteholders, whereupon the Issuer, the continuing Agents and the
additional or successor agent shall acquire and become subject to the
same rights and obligations between themselves as if they then entered
into an agreement in the form mutatis mutandis of this Agreement.
11.5 AGENT MAY APPOINT SUCCESSOR
If any Agent gives notice of its resignation in accordance with Clause
11.1 (Resignation) and by the tenth day before the expiration of such
notice a successor has not been duly appointed, such Agent may itself,
following such consultation with the Issuer as is practicable in the
circumstances and with the prior written approval of the Issuer
(provided such failure to appoint was not due to default by the Issuer)
and the Note Trustee, appoint as its successor any reputable and
experienced bank or financial institution and give notice of such
appointment to the Issuer, the remaining Agents and the Noteholders.
Such successor shall execute and deliver to the relevant Agent, the
Issuer, the Note Trustee and (unless the relevant Agent is the Principal
Paying Agent) the Principal Paying Agent an instrument accepting
appointment on the terms and conditions of this Agreement whereupon the
Issuer, the remaining Agents and such successor agent shall acquire and
become subject to the same rights and obligations between themselves as
if they had entered into an agreement in the form mutatis mutandis of
this Agreement.
11.6 RESIGNATION AND REVOCATION
Upon any resignation or revocation taking effect under Clause 11.1
(Resignation) or 11.2 (Revocation) or any termination under Clause 11.3
(Automatic termination), the relevant Agent shall:
11.6.1 without prejudice to any accrued liabilities and obligations,
be released and discharged from any further obligations under
this Agreement (save that it shall remain entitled to the
benefit of, and subject to, Clause 9.3 (Taxes and expenses
occasioned by default), Clause 10 (Terms of Appointment) and
Clause 11 (Termination of Appointment));
11.6.2 repay to the Issuer following any resignation taking effect
under Clause 11.1 (Resignation) or any termination under
Clause 11.3 (Automatic termination), such part of any fee paid
to it in accordance with Clause 11.1 (Resignation) as shall
relate to any period thereafter;
11.6.3 in the case of the Registrars, the Principal Paying Agent or
the Agent Bank, deliver to the Issuer and to its successor a
copy, certified as true and up-to-date by an officer of the
Registrars, the Principal Paying Agent or (as the case may be)
the Agent Bank, of the records maintained by it in accordance
with Clause 8.1 (Maintenance of records) and, in the case of
the Registrars, Clause 4.1 (Maintenance of the Register); and
11.6.4 forthwith (upon payment to it of any amount due to it in
accordance with Clause 9 (Fees and Expenses) or Clause 10.4
(Indemnity)) transfer all monies and papers (including any
unissued Individual Note Certificates held by it hereunder) to
its successor in that capacity and, upon appropriate notice,
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provide reasonable assistance to its successor for the
discharge by it of its duties and responsibilities hereunder.
11.7 MERGER
Any legal entity into which any Agent is merged or converted or any
legal entity resulting from any merger or conversion to which such Agent
is a party shall, to the extent permitted by applicable law, be the
successor to such Agent without any further formality, whereupon the
Issuer, the Note Trustee, the other Agents and such successor shall
acquire and become subject to the same rights and obligations between
themselves as if they had entered into an agreement in the form mutatis
mutandis of this Agreement. Notice of any such merger or conversion
shall forthwith be given by such successor to the Issuer, the Note
Trustee and the other Agents.
11.8 INDEMNIFICATION
Each Agent shall severally indemnify the Issuer against any loss,
liability, cost, claim, action, demand or expense (including, but not
limited, all reasonable costs, charges and expenses paid or incurred in
disputing or defending any of the foregoing) that the Issuer may incur
or that may be made against it as a result of such Agent's negligence,
fraud or wilful default or that of its officers, employees or agents.
12. CURRENCY CONVERSION
12.1 DETERMINATION OF SPECIFIED CURRENCY AMOUNT
The Exchange Agent shall, before 11.00 a.m. (London time) on the
Business Day prior to the date on which any payment becomes due on any
Notes denominated in Sterling or Euro represented by Rule 144A Global
Note Certificates, determine the aggregate amount of Sterling or Euro in
respect of the relevant Rule 144A Global Note Certificates (a "SPECIFIED
CURRENCY AMOUNT") payable to Noteholders holding interests in such Rule
144A Global Note Certificates in the name of, or the name of a nominee
for, DTC who have not made an irrevocable election to receive payment in
Sterling or Euro, as applicable on such date, as confirmed to the
Exchange Agent by the DTC Custodian and/or DTC.
12.2 U.S. DOLLAR CONVERSION
The Exchange Agent shall, after having determined the Sterling or Euro
amounts pursuant to Clause 12.1 (Determination of Specified Currency
Amount), establish its bid quotation for the purchase of U.S. dollars
with the relevant currency, at or before 11.00 a.m. (London time) on the
Business Day prior to the date on which the payment referred to in
Clause 12.1 (Determination of Specified Currency Amount) becomes due. If
such bid quotation is not available, the Exchange Agent shall obtain a
bid quotation from a leading foreign exchange bank in London selected by
the Exchange Agent for such purchase and the Exchange Agent shall enter
into an agreement to purchase U.S. dollars with the Specified Currency
Amount with such foreign exchange bank. In either event, the settlement
date for the exchange of U.S. dollars with the Specified Currency Amount
shall be the relevant payment date as specified in the Conditions. As
early as practicable on each relevant payment date, the Exchange Agent
shall effect such exchange. As
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promptly as practicable thereafter on such payment date, the Principal
Paying Agent shall pay, or procure the payment of, the U.S. dollar
amount receivable as a result of the exchange of the Specified Currency
Amount into U.S. dollars by wire transfer of same day funds for value
the due date for payment to DTC for payment pro rata to the relevant
accountholders in accordance with DTC's settlement procedures. All costs
of any such conversion into U.S. dollars shall be borne pro rata by the
relevant Noteholders by deduction from the payment made to DTC to the
relevant accountholder. If the applicable due date for payment is not a
day, other than a Saturday or Sunday, on which commercial banks and
foreign exchange markets are open for business in New York City or the
jurisdiction in which the account specified by the Principal Paying
Agent is located, delivery of the U.S. dollars will occur on the next
succeeding day which is such a business day in New York City and in such
principal financial centre.
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SECTION I
MISCELLANEOUS
13. TIME
Any date or period specified herein may be postponed or extended by
mutual agreement among the parties but, as regards any date or period
originally fixed or so postponed or extended, time shall be of the
essence.
AS WITNESS the hands of the duly authorised representatives of the parties
hereto the day and year first before written.
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SCHEDULE 1
SPECIFIED OFFICES OF THE AGENTS
PRINCIPAL PAYING AGENT, UK REGISTRAR, UK TRANSFER AGENT, AGENT BANK AND EXCHANGE
AGENT
HSBC Bank plc
▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇ ▇▇▇
Fax: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Attention: The Manager - Operations, Corporate Trust and Loan Agency
PAYING AGENT, US REGISTRAR AND US TRANSFER AGENT
HSBC Bank USA, National Association
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇
Fax: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Attention: The Manager - Operations, Corporate Trust and Loan Agency
NOTE TRUSTEE
Law Debenture Trust Company Of New York,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇
Fax: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
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SCHEDULE 2
NOTICE OF APPOINTMENT OF AGENT
[On Letterhead of the Issuer]
[Name Agent (each as the case may be)]
[Address]
[Date]
Dear Sirs
TURQUOISE FUNDING MEDIUM TERM NOTE PROGRAMME
We refer to the Agency Agreement dated on or about 23 May 2006 entered into in
respect of the above Programme (such agreement, as modified or amended from time
to time, the "AGENCY AGREEMENT") between, amongst others, ourselves as Issuer
and [HSBC Bank plc] as Principal Paying Agent.
Words and expressions defined in the Agency Agreement shall have the same
meanings when used herein.
We hereby confirm in accordance with Clause 2 (Appointment of the Agents) of the
Agency Agreement your appointment as [specify capacity] in relation to [specify
relevant Series of Notes] upon the terms of the Agency Agreement for the
purposes specified in the Agency Agreement and in the Conditions and all matters
incidental thereto.
Please complete and return to us the copy of this letter duly signed by an
authorised signatory confirming your acceptance of this appointment and your
agreement to be bound by its terms.
This letter is governed by and shall be construed in accordance with English
law.
Yours faithfully,
TURQUOISE CARD BACKED SECURITIES PLC
Acknowledged and agreed by:
---------------------------
[ ]
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SCHEDULE 3
FORM OF AGENT BANK APPOINTMENT LETTER
[On Letterhead of the Issuer]
[Name of Agent]
[Address]
[Date]
Dear Sirs,
TURQUOISE CARD BACKED SECURITIES PLC
TURQUOISE FUNDING MEDIUM TERM NOTE PROGRAMME
We refer to the agency agreement dated on or about 23 May 2006 entered into in
respect of the above Turquoise Funding Medium Term Note Programme (as amended or
supplemented from time to time, the "AGENCY AGREEMENT") between ourselves as
Issuer, HSBC Bank plc as Principal Paying Agent, UK Transfer Agent, UK Registrar
and Agent Bank, HSBC Bank USA, National Association as Paying Agent, US
Registrar, US Transfer Agent and Exchange Agent and Law Debenture Trust Company
Of New York as Note Trustee, a copy of which has been supplied to you by us.
All terms and expressions which have defined meanings in the Agency Agreement
shall have the same meanings when used herein.
EITHER
[We hereby appoint you as Agent Bank at your specified office detailed in the
Confirmation as our agent in relation to [specify relevant Series] (the "NOTES")
upon the terms of the Agency Agreement for the purposes specified in the Agency
Agreement and in the Conditions and all matters incidental thereto.]
OR
[We hereby appoint you as Agent Bank at your specified office detailed in the
Confirmation set out below as our agent in relation to each Series in respect of
which you are named as Agent Bank in the relevant Prospectus Supplement/Final
Terms upon the terms of the Agency Agreement and (in relation to each such
Series) in the Conditions and all matters incidental thereto.]
We hereby agree that, notwithstanding the provisions of the Agency Agreement or
the Conditions, your appointment as Agent Bank may only be revoked in accordance
with Clause 11.2 (Revocation) thereof if you have been negligent in the exercise
of your obligations thereunder or have failed to exercise or perform your
obligations thereunder.
Please complete and return to us the Confirmation on the copy of this letter
duly signed by an authorised signatory confirming your acceptance of this
appointment.
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This letter is governed by, and shall be construed in accordance with, English
law and the provisions of Clauses 25 (Governing Law) and 26 (Jurisdiction) of
the Issuer Master Framework Agreement incorporated into the Agency Agreement
shall apply to this letter as if set out herein in full.
Without prejudice to any right explicitly granted to a party in the Agency
Agreement, a person who is not a party to the Agency Agreement described in this
letter has no right under the Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ to
enforce any term of such Agreement.
Yours faithfully
TURQUOISE CARD BACKED SECURITIES PLC
By:
FORM OF CONFIRMATION
EITHER
We hereby accept our appointment as Agent Bank of the Issuer in relation to the
Notes, and shall perform all matters expressed to be performed by the Agent Bank
in, and shall otherwise comply with, the Conditions and the provisions of the
Agency Agreement and, in connection therewith, shall take all such action as may
be incidental thereto.
OR
We hereby accept our appointment as Agent Bank of the Issuer in relation to each
Series in respect of which we are named as Agent Bank in the relevant Prospectus
Supplement/Final Terms, and shall perform all matters expressed to be performed
by the Agent Bank in, and shall otherwise comply with (in relation to each such
Series) the Conditions and the provisions of the Agency Agreement and, in
connection therewith, shall take all such action as may be incidental thereto.
For the purposes of [the Notes] [each such Series] and the Agency Agreement our
specified office and communication details are as follows:
Address: [o]
Fax: [o]
Attention: The Directors
HSBC Bank plc
▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇ ▇▇▇
By:
Date:
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EXECUTION PAGE
Issuer
TURQUOISE CARD BACKED SECURITIES PLC
By: ▇▇▇▇ ▇▇▇▇▇▇
Director
Principal Paying Agent, UK Registrar, UK Transfer Agent, Agent Bank and Exchange
Agent
HSBC BANK PLC
By: ▇▇▇▇ ▇▇▇▇▇
Authorised Signatory
Paying Agent, US Registrar and US Transfer Agent
HSBC BANK USA, NATIONAL ASSOCIATION
BY; ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
VICE PRESIDENT
Note Trustee
LAW DEBENTURE TRUST COMPANY OF NEW YORK AS NOTE
TRUSTEE
By ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title VICE PRESIDENT
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