Exhibit
10.4
EXECUTION VERSION
SCHEDULE
to the
Master
Agreement
dated as of 22 November 2006
between
 |
|
| (1) |
HSBC USA Inc.
(‘‘Party A’’);
and |
|
|
| (2) |
Turquoise Card Backed Securities
plc (‘‘Party B’’). |
Part 1.
Termination
Provisions
|
|
| (a) |
‘‘Specified
Entity’’ means in relation to Party A for the
purpose of: - |
Section 5(a)(v), none
Section 5(a)(vi), none
Section
5(a)(vii), none
Section 5(b)(iv), none
and in relation to Party B for the purpose of:-
Section 5(a)(v), none
Section
5(a)(vi), none
Section 5(a)(vii), none
Section 5(b)(iv), none
|
|
| (b) |
‘‘Specified
Transaction’’ will have the meaning specified in
Section 14. |
|
|
| (c) |
The
‘‘Cross Default’’ provisions of
Section 5(a)(vi) will apply to Party A and will not apply
to Party B. |
‘‘Specified
Indebtedness’’ will have the meaning specified in
Section 14 of this Agreement but will exclude deposits received by a
party in the ordinary course of its banking business.
‘‘Threshold Amount’’ means,
in respect of Party A, an amount equal to 3% of Party A's
shareholders' equity (on a consolidated basis) as determined from
time to time in accordance with generally accepted UK accounting
principles by reference to Party A's most recently published
audited financial statements.
The following proviso
shall be inserted at the end of Section 5(a)(vi):
‘‘provided, however, that notwithstanding the
foregoing, an Event of Default shall not occur under either (1) or (2)
above if the event or condition referred to in (1) or the failure to
pay referred to in (2) is a failure to pay caused by an error or
omission of an administrative or operational nature and funds were
available to such party to enable it to make the relevant payment when
due, provided that such error or omission is remedied within 3 Business
Days of Party A receiving notice of such failure to
pay;’’.
|
|
| (d) |
The
‘‘Credit Event Upon Merger’’
provisions of Section 5(b)(iv) will not apply to Party A
and will not apply to Party
B. |
|
|
| (e) |
The ‘‘Automatic
Early Termination’’ provision of Section 6(a) will not
apply to Party A and will not apply to Party B. |
|
|
| (f) |
Payments on Early Termination.
For the purposes of Section 6(e) of this Agreement:- |
|
|
|
|
(i) |
Market Quotation will apply. |
1
|
|
|
|
(ii) |
The Second
Method will apply. |
|
|
| (g) |
‘‘Termination
Currency’’ means U.S. Dollars. |
|
|
| (h) |
Additional Termination Event
will apply. Each of the following shall constitute an Additional
Termination Event: |
|
|
|
|
(i) |
Enforcement
Notice. The Note Trustee delivers an Enforcement Notice pursuant to
Condition 11 (Event of Default) of the Conditions. |
For the purpose of the foregoing Additional Termination
Event, Party B shall be the sole Affected
Party.
|
|
|
|
(ii) |
RatingsEvent. One or more of the events specified as constituting
Additional Termination Events in Part 5(f)(vii), (A), (B), (C), (D),
(E) or (F). |
|
|
|
|
(iii) |
Tax
Representation. If the representation made by Party A in Part
5(j)(iii) of this Schedule is incorrect. |
For the purpose
of the Additional Termination Events in this Part 1(h)(ii) and Part
1(h)(iii), Party A shall be the sole Affected Party.
Part
2. Tax
Representations
|
|
| (a) |
Payer
Representations. For the purpose of Section 3(e) of this Agreement,
Party A and Party B will each make the following
representation: |
It is not required by any applicable
law, as modified by the practice of any relevant governmental revenue
authority, of any Relevant Jurisdiction to make any deduction or
withholding for or on account of any Tax from any payment (other than
interest under Section 2(e), 6(d)(ii) or 6(e) of this Agreement
and payments to be made pursuant to the ISDA Credit Support Annex to
the Schedule) to be made by it to the other party under this Agreement.
In making this representation, it may rely on (i) the accuracy of any
representations made by the other party pursuant to Section 3(f) of
this Agreement, (ii) the satisfaction of the agreement contained in
Section 4(a)(i) or 4(a)(iii) of this Agreement and the accuracy and
effectiveness of any document provided by the other party pursuant to
Section 4(a)(i) or 4(a)(iii) of this Agreement and (iii) the
satisfaction of the agreement of the other party contained in
Section 4(d) of this Agreement, provided that it shall not be a
breach of this representation where reliance is placed on clause
(ii) and the other party does not deliver a form or document under
Section 4(a)(iii) by reason of material prejudice to its legal or
commercial position.
|
|
| (b) |
Payee
Representations. |
|
|
|
|
(i) |
For the
purpose of Section 3(f) of this Agreement, Party A makes the following
representation: |
It is a corporation incorporated under
the laws of the State of Delaware and its US taxpayer identification
number is ▇▇-▇▇▇▇▇▇▇. It is ‘‘exempt’’ within
the meaning of U.S. Treasury Regulation sections 1.6041-3(p) and
1.6049-4(c) from information reporting on Form 1099 and backup
withholding.
|
|
|
|
(ii) |
For the purpose of
Section 3(f) of this Agreement, Party B makes the following
representations: |
|
|
|
|
(a) |
It is an entity
treated as a corporation for United States federal income tax purposes
organized and subsisting under the laws of the England and
Wales; |
|
|
|
|
(b) |
No payment received or to be
received by it under this Agreement will be effectively connected with
the conduct by it of a trade or business within the United States;
and |
|
|
|
|
(c) |
It is a 'non-U.S. branch
of a foreign person' as that term is used in section
1.1441-4(a)(3)(ii) of the U.S. Treasury Regulations, and it is a
'foreign person' as that term is used in section
1.6041-4(a)(4) of the U.S. Treasury Regulations. |
2
Part 3. Agreement to Deliver
Documents
For the purpose of Sections 4(a)(i)
and (ii) of this Agreement, each party agrees to deliver the following
documents, as applicable:-
|
|
| (a) |
Tax
forms, documents or certificates to be delivered
are:- |
|
|
|
|
|
|
|
| Party
required to deliver document |
|
|
Form/Document/
Certificate |
|
|
Date by which to be
delivered |
| Party A |
|
|
An executed Internal
Revenue Service Form W-9. |
|
|
Upon execution of this
Agreement. |
| Party B |
|
|
An executed Internal
Revenue Service Form W-8BEN. |
|
|
(i) Upon execution of this
Agreement and (ii) promptly, upon reasonable demand by Party
A. |
|
|
|
| (b) |
Other documents to
be delivered
are:- |
|
|
|
|
|
|
|
|
|
|
| Party
required to deliver document |
|
|
Form/Document/
Certificate |
|
|
Date by which to be delivered |
|
|
Covered by
Section 3(d) Representation
|
| Party A and Party
B |
|
|
Appropriate evidence of its signatory's
authority |
|
|
On signing of this
Agreement |
|
|
Yes |
| |
|
|
|
|
|
|
|
|
|
| Party
A and Party B |
|
|
A copy of the annual report for such party
containing audited or certified financial statements for the most
recently ended financial year |
|
|
Upon request, as soon as publicly
available |
|
|
Yes |
| |
|
|
|
|
|
|
|
|
|
| Party
B |
|
|
Legal opinion in form and substance satisfactory to Party
A |
|
|
On signing of the
Agreement |
|
|
No |
| |
|
|
|
|
|
|
|
|
|
|
Part
4.
Miscellaneous
|
|
| (a) |
Addresses
for Notices. For the purpose of Section 12(a) of this
Agreement:- |
Addresses for notices or communications to
Party A:
|
|
|
|
Address: |
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇,
▇▇▇ |
|
|
|
|
Attention: |
General
Counsel |
|
|
|
|
Facsimile No: |
To be
advised. |
|
|
|
|
Telephone No: |
To be
advised. |
Address for notices or
communications to Party B:-
|
|
|
|
Address: |
c/o Wilmington Trust SP Services
(London) Limited,
Tower 42 (Level 11), ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ |
|
|
|
|
Facsimile
No.: |
▇▇▇ (▇) ▇▇ ▇▇▇▇ ▇▇▇▇ |
3
|
|
|
|
With a copy
to: |
Law Debenture Trust Company of New York |
|
|
|
|
Address: |
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ -
31st Floor, New York, New York 10017 |
|
|
|
|
Facsimile No.: |
▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇ |
It being acknowledged by the parties that a failure to serve
notice on the Law Debenture Trust Company of New York will not
invalidate a notice effectively served on Party A or Party B, as the
case may be.
|
|
| (b) |
Process Agent.
For the purpose of Section 13(c) of this Agreement:- |
Party A appoints as its Process Agent: HSBC Bank
plc
|
|
|
|
Address: |
▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇ |
|
|
|
|
Attention: |
Group Legal Department |
|
|
|
|
Telephone No.: |
▇▇▇ (▇)▇▇ ▇▇▇▇ ▇▇▇▇ |
|
|
|
|
Facsimile No.: |
▇▇▇ (▇)▇▇ ▇▇▇▇ ▇▇▇▇ |
Party B appoints as its Process Agent:
None.
|
|
| (c) |
Offices. The
provisions of Section 10(a) will apply to this
Agreement. |
|
|
| (d) |
Multibranch
Party. For the purpose of Section 10(c) of this
Agreement:- |
Party A is not a Multibranch Party
and shall enter into Transactions through its London office.
Party B is not a Multibranch
Party.
|
|
| (e) |
Calculation Agent.
The Calculation Agent is Party A except where (i) Party A is a
Defaulting Party or (ii) Party A fails to perform, in the reasonable
opinion of Party B, an obligation assumed by it as Calculation Agent
for the purposes of any Transaction, in which case the Calculation
Agent may be a third party selected by Party A and Party B acting
reasonably. For the avoidance of doubt, failure by Party A to perform
its obligations as Calculation Agent shall not constitute an Event of
Default or Termination
Event. |
|
|
| (f) |
Credit Support
Document. |
Details of any Credit Support
Document:-
In respect of Party A, none.
In respect of Party B,
none.
|
|
| (g) |
Credit Support
Provider. |
Credit Support Provider means in relation
to Party A, none.
Credit Support Provider means in
relation to Party B,
none.
|
|
| (h) |
Governing Law. This
Agreement and each Confirmation will be governed by and construed in
accordance with English
law. |
|
|
| (i) |
Netting of Payments.
Subparagraph (ii) of Section 2(c) of this Agreement will apply to
Transactions entered into under this Agreement. |
|
|
| (j) |
‘‘Affiliate’’
will have the meaning specified in Section 14 of this Agreement,
provided that for the purposes of Section 3(c) Party A shall be deemed
to have no Affiliates. |
Part 5. Other
Provisions
|
|
| (a) |
No
Set-Off |
|
|
|
|
(i) |
All payments under
this Agreement shall be made without set-off or counterclaim, except as
expressly provided for in Section 6. |
4
|
|
|
|
(ii) |
Section 6(e)
shall be amended by the deletion of the following sentence at the end
of the first paragraph thereof: ‘‘The amount, if any,
payable in respect of an Early Termination Date and determined pursuant
to this Section will be subject to any
Set-off.’’ |
|
|
| (b) |
Security
Interest |
Notwithstanding Section 7, Party A hereby
agrees and consents to the assignment by way of security by Party B of
its interests under this Agreement (without prejudice to, and after
giving effect to, any contractual netting provision contained in this
Agreement) to the Note Trustee (or any successor thereto) pursuant to
and in accordance with the Note Trust Deed and Note Trust Deed
Supplement and acknowledges notice of such assignment. Each of the
parties hereby confirms and agrees that the Note Trustee shall not be
liable for any of the obligations of Party B
hereunder.
|
|
| (c) |
Amendment to Failure
to Pay |
|
|
|
|
(i) |
Subject to (ii) below
Section 5(a)(i) (Failure to Pay or Deliver) shall not be applicable
with respect to a failure by Party B to make, when due, any payment
under this Agreement. |
|
|
|
|
(ii) |
A failure
by Party B to pay the Party B Initial Exchange Amount, and/or any
interim exchange amount (in the event that an amount equal to the Party
B Redemption Amount is payable by Party B pursuant to the terms of a
confirmation hereunder) and/or the Party B Final Exchange Amount shall
constitute a Failure to Pay or Deliver pursuant to Section 5(a)(i) of
the Agreement. |
|
|
| (d) |
Disapplication of
Certain Events of Default |
Sections 5(a)(ii),
5(a)(iii), 5(a)(iv), 5(a)(v), 5(a)(vii)(2), (5), (6), (7) and (9), and
5(a)(viii) will not apply in respect of Party B.
Section 5(a)(vii)(8) will not apply to Party B to the extent
that it applies to Section 5(a)(vii)(2) (5), (6) and (7).
|
|
| (e) |
Additional Event of
Default |
Section 5(a) of this Agreement is hereby
amended by the addition of the following event as Section 5(a)(ix) of
this Agreement:
If Party A fails to comply with its
obligations pursuant to Clause 4(a) of the Disclosure
Agreement.
|
|
| (f) |
Ratings
Events |
|
|
|
|
(i) |
In the event that the
short-term, unsecured and unsubordinated debt obligations of Party A
(or its successor) or any Credit Support Provider from time to time in
respect of Party A cease to be rated at least as high as A-1+ by
S&P (an ‘‘Initial S&P Rating
Event’’), then Party A will, within 30 days of the
occurrence of such Initial S&P Rating Event, at its own cost
either: |
|
|
|
|
(A) |
transfer collateral
pursuant to the provisions of a 1995 ISDA Credit Support Annex
(Bilateral Form-Transfer) entered into between Party A and Party B on
the date hereof and annexed to this Agreement (the
‘‘Credit Support Annex’’) provided that,
such posting of collateral shall be subject to the following: |
|
|
|
|
(aa) |
if required by S&P at the time
of such posting, Party A obtaining legal opinions satisfactory to
S&P in relation to such posting; and |
|
|
|
|
(bb) |
if the (x) long-term, unsecured and
unsubordinated debt obligations of Party A (or its successor), or any
Credit Support Provider from time to time in respect of Party A, cease
to be rated at least as high as BBB+ by S&P or (y) the short-term,
unsecured and unsubordinated debt obligations of Party A (or its
successor) or any Credit Support Provider from time to time in respect
of Party A cease to be rated at least as high as A-2, Party A obtaining
an external verification of its valuation of the transactions under the
Credit Support Annex on a monthly basis provided that; |
|
|
|
|
(1) |
the valuation may only be obtained
from the same entity up to four times in any twelve month period; |
5
|
|
|
|
(2) |
Party
B's Exposure (as defined in the Credit Support Annex), for the
purposes of posting collateral in accordance with the Credit Support
Annex, shall be deemed to be equal to the highest of the two
independent third party valuation bids and the amount calculated in
accordance with the Credit Support Annex; and |
|
|
|
|
(3) |
Party A shall provide S&P with the
two monthly independent third party valuations and its calculations
pursuant to paragraph 3(b) of the Credit Support Annex in relation to
the day on which the monthly independent third party valuations are
obtained; or |
|
|
|
|
(B) |
transfer all of its
rights and obligations with respect to this Agreement to a replacement
third party whose short-term unsecured and unsubordinated debt
obligations are rated at least A-1+ (or its equivalent) by S&P or
such other rating as is commensurate with the rating assigned to the
relevant Series of Notes by S&P from time to time;
or |
|
|
|
|
(C) |
procure another person to become
co-obligor or guarantor in respect of the obligations of Party A with
respect to this Agreement, whose short-term, unsecured or
unsubordinated debt obligations are rated at least A-1+ by S&P or
such other rating as is commensurate with the rating assigned to the
relevant Series of Notes by S&P from time to time;
or |
|
|
|
|
(D) |
take such other action as Party
A may agree with S&P as will result in the rating of the relevant
Series of Notes by S&P following the taking of such action being
maintained at, or restored to, the level it was at immediately prior to
such Initial S&P Rating Event. |
If any of
sub-paragraphs (i)(B), (i)(C) or (i)(D) above are satisfied at any
time, all collateral (or the equivalent thereof, as appropriate)
transferred by Party A pursuant to sub-paragraph (i)(A) will be
transferred to Party A and Party A will not be required to transfer any
additional collateral in respect of such Initial S&P Rating
Event.
|
|
|
|
(ii) |
In the event that the
long-term, unsecured and unsubordinated debt obligations of Party A (or
its successor) or any Credit Support Provider from time to time in
respect of Party A cease to be rated at least as high as BBB- by
S&P and, as a result of such cessation, the then current rating of
the relevant Series of Notes may in the reasonable opinion of S&P
be downgraded or placed under review for possible downgrade (such
event, a ‘‘Subsequent S&P Rating
Event’’), then Party A
will: |
|
|
|
|
(A) |
at its own cost and expense,
take the action set out in sub-paragraphs (i)(B), (i)(C) or (i)(D)
above within 10 days of the occurrence of such Subsequent S&P
Rating Event; and |
|
|
|
|
(B) |
if, at the time
such Subsequent S&P Rating Event occurs, Party A has provided
collateral pursuant to a ▇▇▇▇-to-market collateral arrangement put in
place pursuant to sub-paragraph (i)(A) above following an Initial
S&P Rating Event, continue to post collateral notwithstanding the
occurrence of such Subsequent S&P Rating Event until such time as
any action set out in sub-paragraph (ii)(A) above has been taken. |
If the action set out in sub-paragraph (ii)(A) above is
taken at any time, all collateral (or the equivalent thereof, as
appropriate) transferred by Party A pursuant to sub-paragraphs (i)(A)
or (ii)(B) above will be transferred to Party A and Party A will not be
required to transfer any additional collateral in respect of such
Subsequent S&P Rating
Event.
|
|
|
|
(iii) |
In the event that the
long-term, unsecured and unsubordinated debt obligations of Party A (or
its successor) or any Credit Support Provider in respect of Party A
cease to be rated at least as high as A1 (or its equivalent) by
▇▇▇▇▇'▇ (such cessation being an ‘‘Initial
▇▇▇▇▇'▇ Rating Event’’), then Party A will,
within 30 days of the occurrence of such Initial ▇▇▇▇▇'▇ Rating
Event, at its own cost
either: |
|
|
|
|
(A) |
transfer all of its rights
and obligations with respect to this Agreement to a replacement third
party with the Required Ratings (as defined below) and domiciled in the
same legal jurisdiction as Party A or Party B provided that such
transfer does not result in any requirement for deduction or
withholding for or on account of any Tax; |
6
|
|
|
|
(B) |
procure
another person to become co-obligor or guarantor in respect of the
obligations of Party A under this Agreement, which co-obligor or
guarantor may be a person with the Required Ratings (as defined below)
and domiciled in the same legal jurisdiction as Party A or Party B
provided that such appointment of a co-obligor or guarantor does not
result in any requirement for deduction or withholding for or on
account of any Tax; |
|
|
|
|
(C) |
take such
other action as Party A may agree with ▇▇▇▇▇'▇ to remedy such
Initial ▇▇▇▇▇'▇ Rating Event;
or |
|
|
|
|
(D) |
post collateral in accordance
with the provisions of the Credit Support Annex. |
If any
of sub-paragraphs (iii)(A), (iii)(B) or (iii)(C) above are satisfied at
any time, all collateral (or the equivalent thereof, as appropriate)
transferred by Party A pursuant to sub-paragraph (iii)(D) above will be
transferred to Party A and Party A will not be required to transfer any
additional collateral in respect of such Initial ▇▇▇▇▇'▇ Rating
Event.
|
|
|
|
(iv) |
In the event that the
long-term, unsecured and unsubordinated debt obligations of Party A (or
its successor) or any Credit Support Provider in respect of Party A
cease to be rated as high as A3 (or its equivalent) by ▇▇▇▇▇'▇ or
the short-term, unsecured and unsubordinated debt obligations of Party
A (or its successor) or any Credit Support Provider of Party A cease to
be rated as high as P-1 (or its equivalent) by ▇▇▇▇▇'▇ (such
cessation being a ‘‘Subsequent ▇▇▇▇▇'▇ Rating
Event’’), then Party A
will: |
|
|
|
|
(A) |
within 30 days of the
occurrence of such Subsequent ▇▇▇▇▇'▇ Rating Event on a
reasonable efforts basis, and at its own cost, attempt either
to: |
|
|
|
|
(1) |
transfer all of its rights and
obligations with respect to this Agreement to a replacement third party
with the Required Ratings (as defined below) and domiciled in the same
legal jurisdiction as Party A or Party B provided that such transfer
does not result in any requirement for deduction or withholding for or
on account of any Tax; |
|
|
|
|
(2) |
procure
another person to become co-obligor or guarantor in respect of the
obligations of Party A with respect to this Agreement, which co-obligor
or guarantor may be a person with the Required Ratings (as defined
below) and domiciled in the same legal jurisdiction as Party A or Party
B provided that such appointment of a co-obligor or guarantor does not
result in any requirement for deduction or withholding for or on
account of any Tax; or |
|
|
|
|
(3) |
take such
other action as Party A may agree with ▇▇▇▇▇'▇ to remedy such
Subsequent ▇▇▇▇▇'▇ Rating Event;
and |
|
|
|
|
(B) |
within the later of 10 days of
the occurrence of such Subsequent ▇▇▇▇▇'▇ Rating Event and 30
days of the occurrence of an Initial ▇▇▇▇▇'▇ Rating Event, post
collateral according to the Credit Support Annex provided that Party A
shall continue, on a best efforts basis and at its own cost, to make
all reasonable attempts to take the actions specified in sub-paragraph
(iv)(A) above. |
If any of sub-paragraphs (iv)(A)(1),
(iv)(A)(2) or (iv)(A)(3) above are satisfied at any time, all
collateral (or the equivalent thereof, as appropriate) transferred by
Party A pursuant to sub-paragraphs (iii)(D) or (iv)(B) above will be
transferred to Party A and Party A will not be required to transfer any
additional collateral in respect of such Subsequent ▇▇▇▇▇'▇
Rating Event.
For the purposes of sub-paragraphs (iii)
and (iv) of this Part 5(f), Required Ratings means, in respect
of the relevant entity, its short-term, unsecured and unsubordinated
debt obligations are rated at least as high as Prime-1 by ▇▇▇▇▇'▇
and its long-term, unsecured and unsubordinated debt obligations are
rated at least as high as A-1 by ▇▇▇▇▇'▇, or such other ratings
as may be agreed with ▇▇▇▇▇'▇ from time to
time.
|
|
|
| (v) |
(A) |
If
Party A does not take any of the measures described in sub-paragraph
(i) above, such failure shall not be or give rise to an Event of
Default but shall constitute an Additional Termination Event with
respect to Party A which shall be deemed to have occurred on the
thirtieth day following the Initial S&P Rating Event with Party A
as the sole Affected Party and all Transactions as Affected
Transactions. |
7
|
|
|
|
(B) |
If, at the
time a Subsequent S&P Rating Event occurs, Party A has provided
collateral pursuant to a ▇▇▇▇-to-market collateral arrangement put in
place pursuant to sub-paragraph (i)(A) above and fails to continue to
post collateral pending compliance with sub-paragraph (ii)(A) or
(ii)(B) above, such failure will not be or give rise to an Event of
Default but will constitute an Additional Termination Event with
respect to Party A which will be deemed to have occurred on the later
of the tenth day following such Subsequent S&P Rating Event and the
thirtieth day following the Initial S&P Rating Event with Party A
as the sole Affected Party and all Transactions as Affected
Transactions. Further, an Additional Termination Event with respect to
Party A shall be deemed to have occurred if, even if Party A continues
to post collateral as required by sub-paragraph (ii) above, and
notwithstanding Section 5(a)(ii), Party A does not take the action
described in sub-paragraph (ii)(A) or (ii)(B) above. Such Additional
Termination Event will be deemed to have occurred on the tenth day
following the Subsequent S&P Rating Event with Party A as the sole
Affected Party and all Transactions as Affected
Transactions. |
|
|
|
|
(C) |
If Party A does not
take any of the measures described in sub-paragraph (iii) above, such
failure shall not be or give rise to an Event of Default but shall
constitute an Additional Termination Event with respect to Party A
which shall be deemed to have occurred on the thirtieth day following
the occurrence of such Initial ▇▇▇▇▇'▇ Rating Event with Party A
as the sole Affected Party and all Transactions as Affected
Transactions. |
|
|
|
|
(D) |
If Party A does not
take the measures described in sub-paragraph (iv)(B) above, such
failure shall give rise to an Event of Default with respect to Party A
which shall be deemed to have occurred on the thirtieth day following
such Subsequent ▇▇▇▇▇'▇ Rating Event (or, if Party A has posted
collateral pursuant to the Credit Support Annex under sub-paragraph
(iii)(D) above, such Event of Default shall be deemed to have occurred
on the tenth day following such Subsequent ▇▇▇▇▇'▇ Rating Event)
with Party A as the Defaulting Party. Further, it shall constitute an
Additional Termination Event with respect to Party A if, even after
satisfying the requirement to post collateral as required by
sub-paragraph (iv)(B) above, and notwithstanding Section 5(a)(ii),
Party A does not, irrespective of whether or not Party A has applied
the required level of effort, take any of the measures described in
sub-paragraph (iv)(A). Such Additional Termination Event shall be
deemed to have occurred on the thirtieth day following the Subsequent
▇▇▇▇▇'▇ Rating Event with Party A as the sole Affected Party and
all Transactions as Affected Transactions. |
Party B shall
use its reasonable endeavours to co-operate with Party A in putting in
place such credit support documentation, including (without limitation)
entering into such documents as may reasonably be requested by Party A
in connection with the provision of such collateral or in connection
with any of the other measures which Party A may take under this Part
5(f) following the rating events described herein.
|
|
| (g) |
Additional Representations |
Section 3 is amended by the addition at the end
thereof of the following additional representations (provided that the
representations in Sections 3(h) and 3(i) will be made by Party A
only):
|
|
|
|
|
|
‘‘(g) |
No
Agency. It is entering into this Agreement and each Transaction as
principal and not as agent of any person. |
|
|
|
|
|
|
(h) |
Pari
Passu. Its obligations under this Agreement rank pari passu with
all of its other unsecured, unsubordinated obligations except those
obligations preferred by operation of
law.’’ |
|
|
| (h) |
Recording of
Conversations |
Each party to this Agreement
acknowledges and agrees to the tape recording of conversations between
the parties to this Agreement.
8
|
|
| (i) |
Relationship
between the Parties |
The Agreement is amended by the
insertion after Section 14 of an additional Section 15,
reading in its entirety as follows:
‘‘15.
Relationship between the Parties
Each party will
be deemed to represent to the other party on the date on which it
enters into a Transaction that (absent a written agreement between the
parties that expressly imposes affirmative obligations to the contrary
for that Transaction):
|
|
|
|
(i) |
Non
Reliance. It is acting for its own account, and it has made its
own decisions to enter into that Transaction and as to whether that
Transaction is appropriate or proper for it based upon advice from such
advisers as it has deemed necessary. It is not relying on any
communication (written or oral) of the other party as investment advice
or as a recommendation to enter into that Transaction; it being
understood that information and explanations related to the terms and
conditions of a Transaction shall not be considered investment advice
or a recommendation to enter into that Transaction. It has not received
from the other party any assurance or guarantee as to the expected
results of that
Transaction. |
|
|
|
|
(ii) |
Assessment and
Understanding. It is capable of assessing the merits of and
understanding (through independent professional advice), and
understands and accepts, the terms, conditions and risks of that
Transaction. It is also capable of assuming, and assumes, the financial
and other risks of that
Transaction. |
|
|
|
|
(iii) |
Status of
Parties. The other party is not acting as a fiduciary or an
adviser for it in respect of that
Transaction.’’ |
|
|
| (j) |
Tax |
|
|
|
|
(i) |
No
Gross Up: Neither Party A nor Party B will in any circumstances be
required to pay additional amounts in respect of any Indemnifiable Tax
or be under any obligation to pay to the other any amount in respect of
any liability of such other for or on account of any Tax and,
accordingly, Section 2(d)(i)(4) shall not
apply. |
|
|
|
|
(ii) |
Reduction of amounts
payable by Party A: If any Tax shall be deducted, accounted for,
or suffered on a payment due by Party B any payments to be made by
Party B hereunder shall be net of the amount of any Tax so withheld,
accounted for, deducted or suffered and Party A's payment
obligations shall be reduced in proportion to the amount by which the
payments to be made by Party B are so reduced. If any Tax shall be
deducted, accounted for, or suffered on a payment due by Party A any
payments to be made by Party A hereunder shall be made net of the
amount of any taxes so withheld, accounted for, deducted or suffered
and the payment obligations of Party B shall remain the
same. |
|
|
|
|
(iii) |
Party A represents to Party
B at all times until the termination of this Agreement that at least
one of the following representations is
correct: |
|
|
|
|
|
|
(A) |
it is
resident in the United Kingdom for United Kingdom tax purposes;
or |
|
|
|
|
|
|
(B) |
it is party
to each Transaction solely for the purposes of a trade (or part of a
trade) carried on by it in the United Kingdom through a branch or
agency (as that expression is construed for the purposes of paragraph
31(6)(a) of Schedule 26 to the Finance ▇▇▇ ▇▇▇▇, as amended or
re-enacted from time to time);
or |
|
|
|
|
|
|
(C) |
it is
resident in a jurisdiction that has a double taxation convention or
treaty with the United Kingdom which has effect by virtue of section
788 of the Income and Corporation Taxes Act 1988 and under which
provision, whether for relief or otherwise, in relation to interest (as
defined in the relevant treaty or convention) is made (as that
expression is construed for the purposes of paragraph 31(7) of Schedule
26 to the Finance ▇▇▇ ▇▇▇▇, as amended or re-enacted from time to
time).’’ |
9
|
|
| (k) |
Amendments
to Section 6(b) |
The following amendments shall
apply in respect of Section 6(b)(i), 6(b)(ii), 6(b)(iii) and 6(b)(iv)
only if a Tax Event occurs or a Tax Event Upon Merger occurs and the
Affected Party wishes to designate an Early Termination Date under
Section 6(b)(iv):
|
|
|
|
(i) |
Section 6(b)(i)
is hereby amended by replacing the words ‘‘an Affected
Party’’ in the first line thereof with ‘‘Party
A’’ |
|
|
|
|
(ii) |
Section 6(b)(ii)
of this Agreement is hereby amended by replacing the words
‘‘the Affected Party’’ appearing before the
word ‘‘will’’ in the third line thereof with
the words ‘‘Party A’’ and by replacing the word
‘‘its’’ in the third line thereof with the word
‘‘the Affected Party's’’ and by replacing
the words ‘‘the Affected Party’’ in the first
line of the second paragraph thereof with the words ‘‘Party
A’’. |
|
|
|
|
(iii) |
Section
6(b)(iii) is hereby amended by deleting the words ‘‘to
reach agreement within 30 days after notice thereof is given under
Section 6(b)(i) on action to avoid that Termination
Event.’’ and replacing them with the words ‘‘to
effect a transfer under Section 6(b)(ii) after notice is given under
Section
6(b)(i).’’ |
|
|
|
|
(iv) |
Section
6(b)(iv)(1) is amended by inserting the words ‘‘Party
A’’ in place of ‘‘an’’ at the end
of the second line thereof and deleting the words
‘‘Affected Party’’ in the third line
thereof. |
|
|
| (l) |
Pre-Estimate |
Section 6(e)(iv) of the Agreement is hereby amended by
adding the following wording after the word
‘‘except’’ in the third line thereof:
‘‘(1) for any loss which either party may suffer by reason
of its payments hereunder ceasing to be deductible for tax purposes as
a result of one or more of the representations made by Party A in Part
5(j)(iii) failing to be accurate and true at any time unless such
failure would not have occurred but for (a) any action taken by a
taxing authority, or brought in a court of competent jurisdiction, on
or after the date on which a Transaction is entered into (regardless of
whether such action is taken or brought with respect to a party to this
Agreement) or (b) a Change in Tax Law; or
(2)’’.
|
|
| (m) |
Amendment to
Tax Event |
Section 5(b)(ii) shall be amended by the
insertion of ‘‘or payments to be made pursuant to the
Credit Support Annex to the Agreement’’ after
‘‘6(e)’’ on the seventh line of the paragraph
and after ‘‘6(e)’’ on the ninth line of the
paragraph.
|
|
| (n) |
Condition
Precedent |
Section 2(a)(iii) shall be amended
by the deletion of the words ‘‘a Potential Event of
Default’’ in respect of obligations of Party A
only.
|
|
| (o) |
Representations |
Section 3(b) shall be amended by the deletion of the words
‘‘or Potential Event of Default’’ in respect of
the representation given by Party B
only.
|
|
| (p) |
Modifications to close-out
provisions |
Upon the occurrence of an Event of
Default with respect to Party A or an Additional Termination Event
which entitles Party B to terminate any Affected Transaction pursuant
to Section 6(b) of the Agreement, Party B will be entitled (but not
obliged in the event that it does not designate an Early Termination
Date) to proceed in accordance with Section 6 of the Agreement subject
to the following:
|
|
|
|
(i) |
For the purposes
of Section 6(d)(i), Party B's obligation with respect to the
extent of information to be provided with its calculations is limited
to information Party B has already received in writing and provided
Party B is able to release this information without breaching the
provisions of any law applicable to, or any contractual restriction
binding upon, Party B. |
|
|
|
|
(ii) |
The
following amendments shall be deemed to be made to the definition of
‘‘Market Quotation’’: |
10
|
|
|
|
(A) |
the word
‘‘firm’’ shall be added before the word
‘‘quotations’’ in the second line; and |
|
|
|
|
(B) |
the words ‘‘, provided
that the documentation relating thereto is either the same as this
Agreement and the existing confirmations hereto (and the Reference
Market-maker has the Rating Requirements (or, if such Reference
Market-maker is not rated by a Rating Agency, it has such equivalent
rating that is acceptable to such Rating Agency)) or the Rating
Agencies have confirmed in writing that such proposed documentation
will not adversely impact the ratings of the relevant Series of
Notes’’ shall be added after
‘‘agree’’ in the sixteenth line; and |
|
|
|
|
(C) |
the last sentence shall be deleted
and replaced with the following: |
‘‘If, on
the last date set for delivery of quotations, exactly two quotations
are provided, the Market Quotation will be the arithmetic mean of the
two quotations. If only one quotation is provided on such date, Party B
may, in its discretion, accept such quotation as the Market Quotation
and, if Party B does not accept such quotation (or if no quotation has
been provided), it will be deemed that the Market Quotation in respect
of the Terminated Transaction cannot be
determined.’’
|
|
|
|
(iii) |
For the
purpose of the definition of ‘‘Market
Quotation’’, and without limitation of the general rights
of Party B under the Agreement: |
|
|
|
|
(A) |
Party B will undertake to use its
reasonable efforts to obtain at least three firm quotations as soon as
reasonably practicable after the Early Termination Date and in any
event within the time period specified pursuant to Part 5(p)(iii)(C)
below; |
|
|
|
|
(B) |
Party A shall, for the
purposes of Section 6(e), be permitted to obtain on behalf of Party B
quotations from Reference Market-makers on terms that reflect as
closely as possible the terms of the Terminated Transactions; |
|
|
|
|
(C) |
If no quotations have been obtained
within 6 Local Business Days after the occurrence of the Early
Termination Date or such longer period as Party B may specify in
writing to Party A, then it will be deemed that the Market Quotation in
respect of the Terminated Transaction cannot be determined; |
|
|
|
|
(D) |
Party B will be deemed to have
discharged its obligations under Part 5(p)(iii)(A) above if it promptly
requests, in writing, Party A (such request to be made within two Local
Business Days after the occurrence of the Early Termination Date) to
obtain on behalf of Party B quotations from Reference Market-makers on
terms that reflect as closely as possible the terms of the Terminated
Transactions. Party A agrees to act in accordance with such request;
and |
|
|
|
|
(E) |
Party B will not be obliged
to consult with Party A as to the day and time of obtaining any
quotations. |
|
|
|
|
(iv) |
For purposes of this
Part 5(p), ‘‘Ratings Requirement’’
means, in respect of the relevant Reference Market-maker, its
short-term unsecured and unsubordinated debt obligations are rated at
least as high as A-1+ by S&P and Prime-1 by Moody's and its
long-term unsecured and unsubordinated debt obligations are rated at
least as high as A1 by
Moody's. |
|
|
| (q) |
Contracts (Rights
of Third Parties) ▇▇▇ ▇▇▇▇ |
A person who is not a
party to this Agreement shall have no right under the Contracts (Rights
of Third Parties) ▇▇▇ ▇▇▇▇ to enforce any of its terms but this shall
not affect any right or remedy of a third party which exists or is
available apart from that
Act.
|
|
| (r) |
Change of Account |
Section 2(b) of the Agreement is hereby amended by the
addition of the following at the end thereof:
‘‘; provided that such new account shall be in
the same legal and tax jurisdiction as the original account and such
new account, in the case of Party A and Party B, is held with a
financial institution with a short term unsecured, unsubordinated and
unguaranteed debt obligation rating by S&P of at least
A-1+.’’
11
|
|
| (s) |
Payments
to Principal Paying Agent |
|
|
|
|
(i) |
Party A agrees that in the event that
Party B provides a written instruction to Party A requesting that Party
A should pay to HSBC Bank plc (in its capacity as Principal Paying
Agent pursuant to the Agency Agreement) amounts which Party A would
otherwise be required to pay Party B pursuant to this Agreement, then
subject to (ii) below, Party A agrees to make such payments to the
Principal Paying Agent; and |
|
|
|
|
(ii) |
Party B acknowledges that, following
receipt by Party A of a written instruction from Party B, as referred
to in (i) above, Party A's payments to the Principal Paying Agent
shall discharge in full any obligations which Party A may have to make
payments to Party B
hereunder. |
|
|
| (t) |
Deed of
Charge |
Party B undertakes that its obligations to
Party A pursuant to this Agreement shall at all times be secured by the
Deed of
Charge.
|
|
| (u) |
Transfers |
Section 7 of this Agreement shall not apply to a transfer by
Party A of its interests or obligations under this Agreement. Party A
shall be required to comply with, and shall be bound by, the
following:
Without prejudice to Section 6(b)(ii), Party
A may transfer all its interest and obligations in and under this
Agreement upon providing ten Local Business Days' prior written
notice to the Note Trustee and Party B, to any other entity (a
‘‘Transferee’’) provided
that:
|
|
|
|
(i) |
the Transferee's
short-term, unsecured and unsubordinated debt obligations are then
rated not less than ‘‘A-1+’’ by S&P and
‘‘Prime-1’’ by Moody's and its long-term
unsecured and unsubordinated debt obligations are then rated not less
than ‘‘A1’’ by Moody's (or its equivalent
by any substitute rating agency) or such Transferee's obligations
under this Agreement are guaranteed by an entity whose short-term,
unsecured and unsubordinated debt obligations are then rated not less
than ‘‘A-1+’’ by S&P and
‘‘Prime-1’’ by Moody's and whose
long-term unsecured and unsubordinated debt obligations are then rated
not less than ‘‘A1’’ by Moody's (or if
the Transferee is not rated by a Rating Agency, at such equivalent
rating by another internationally recognised rating agency as is
acceptable to such rating
agency); |
|
|
|
|
(ii) |
as of the date of such
transfer, the Transferee will not, as a result of such transfer, be
required to withhold or deduct on account of any Tax under this
Agreement; |
|
|
|
|
(iii) |
a Termination Event or
an Event of Default will not occur under this Agreement as a direct
result of such transfer; |
|
|
|
|
(iv) |
no
additional amount will be payable by Party B to Party A or the
Transferee on the next succeeding Scheduled Payment Date as a result of
such transfer; and |
|
|
|
|
(v) |
(if the
Transferee is domiciled in a different jurisdiction from both Party A
and Party B) S&P and Moody's have provided prior written
notification that the then current ratings of the relevant Series of
Notes will not be adversely affected. |
Following such
transfer all references to Party A shall be deemed to be references to
the Transferee.
Save as otherwise provided for in this
Agreement and notwithstanding Section 7, Party A shall not be permitted
to transfer (by way of security or otherwise) this Agreement or any
interest or obligation in or under this Agreement without the prior
written consent of the Note Trustee.
Party B shall
notify the Note Trustee if the Transferee is not an office, branch or
affiliate of Party
B.
|
|
| (v) |
Non-petition |
Party A hereby agrees that it shall comply with the
provisions of clause 7 and clause 8 of the Master Framework
Agreement.
12
|
|
| (w) |
Scope of
Agreement |
The parties hereto hereby agree that this
Agreement relates solely to Transactions in respect of the Series
2006-2 Notes, which Transactions have been or will be entered into
between Party A and Party
B.
|
|
| (x) |
Additional
Definitions |
‘‘Agency
Agreement’’ means the agency agreement relating to the
Turquoise Funding Medium Term Note Programme dated 23 May 2006 between
Party B, Law Debenture Trust Company of New York and others.
‘‘Class [•]
Notes’’ means USD [•] Series 2006-2
Class [•] Notes issued by Party B under the
Programme.
‘‘Conditions’’
means the terms and conditions (each a
‘‘Condition’’) of the Notes as set out
in the base prospectus dated 30 October 2006 in respect of the
Programme.
‘‘Disclosure
Agreement’’ means a disclosure agreement dated 15
November 2006 between Party A, Party B and others.
‘‘Enforcement Notice’’ shall
bear the meaning given to it in the Conditions.
‘‘Master Framework Agreement’’
means the Issuer Master Framework Agreement relating to the Turquoise
Funding Medium Term Note Programme dated 23 May 2006 between Party B,
Law Debenture Trust Company of New York and others.
‘‘Moody's’’ means
▇▇▇▇▇'▇ Investors Service Inc.
‘‘Notes’’ means the relevant
class or sub class of notes to which this agreement relates, as
identified in the applicable Confirmation.
‘‘Note Trust Deed’’ means the
note trust deed relating to the Turquoise Funding Medium Term Note
Programme dated 23 May 2006 between Party B and Law Debenture Trust
Company of New York.
‘‘Note Trust Deed
Supplement’’ means the note trust deed supplement
supplemental to the Note Trust Deed dated 22 November 2006 between,
Party A, Party B and others.
‘‘Note
Trustee’’ shall bear the meaning given to it the Note
Trust Deed.
‘‘Party B Initial Exchange
Amount’’ shall bear the meaning given in the applicable
Confirmation.
‘‘Party B Final Exchange
Amount’’ means shall bear the meaning given in the
applicable Confirmation.
‘‘Principal
Paying Agent’’ means HSBC Bank plc in its capacity as
principal paying agent pursuant to the Agency Agreement.
‘‘Programme’’ means the
$10,000,000,000 Turquoise Card Backed Securities Medium Term Note
Programme.
‘‘Rating
Agency’’ means any one of S&P and
▇▇▇▇▇'▇.
‘‘Rating
Agencies’’ means S&P and Moody's.
‘‘S&P’’ means Standard
& Poor's Rating Services, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc.
‘‘Series’’
means, with respect to the Notes, a series of Notes with the same terms
and conditions issued in accordance with the base prospectus dated 30
October 2006 in respect of the Programme.
‘‘Series 2006-2 Notes’’ means
[•].
13
IN WITNESS
WHEREOF, the parties have executed this Schedule by their duly
authorised officers as of the date hereof.
HSBC USA
Inc. Turquoise
Card Backed Securities plc
(as Party
A) (as
Party
B)
|
|
| Signature: |
Signature: |
|
|
| Date: |
Date: |
14