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CHANCE
[__] OCTOBER 2006
TURQUOISE CARD BACKED SECURITIES PLC
as the Issuer
HSBC BANK PLC
as HSBC
TURQUOISE FUNDING 1 LIMITED
as the Loan Note Issuer No.1
TURQUOISE RECEIVABLES TRUSTEE LIMITED
as the Receivables Trustee
HSBC BANK PLC
as the Arranger and as a Dealer
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DEED OF AMENDMENT AND RESTATEMENT TO THE
DEALER AGREEMENT DATED 23 MAY 2006
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CONTENTS
CLAUSE PAGE
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1. Definitions and Interpretation....................................... 2
2. Amendment and Restatement............................................ 3
3. Consent.............................................................. 3
4. Continuity and Further Assurance..................................... 3
5. Incorporation of Terms............................................... 4
6. Law and Jurisdiction................................................. 4
7. Counterparts......................................................... 4
8. Rights of Third Parties.............................................. 4
SCHEDULE 1 Amended and Restated Dealer Agreement......................... 6
-1-
▇▇▇▇▇▇▇▇ LIMITED LIABILITY PARTNERSHIP
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THIS DEED OF AMENDMENT is made on [__] October 2006
BETWEEN
(1) TURQUOISE CARD BACKED SECURITIES PLC, a public limited liability company
incorporated in England and Wales with company number 5506646 and whose
registered office is at c/o Wilmington Trust SP Services (London) Limited
Tower 42 (Level 11), ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (the "ISSUER");
(2) HSBC BANK PLC, a public limited liability company incorporated in England
and Wales (registered number 14259) having its registered office at ▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ("HSBC");
(3) TURQUOISE FUNDING 1 LIMITED, a private limited liability company
incorporated in Jersey, Channel Islands, with registration number 92327 and
having its registered office at ▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇
Channel Islands ("LOAN NOTE ISSUER NO.1");
(4) TURQUOISE RECEIVABLES TRUSTEE LIMITED, a private limited company
incorporated under the laws of Jersey, Channel Islands with company number
92324 and having its registered office at ▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇ ▇▇▇ Channel Islands ("RECEIVABLES TRUSTEE"); and
(5) HSBC BANK PLC as the "ARRANGER" pursuant to the Original Dealer Agreement
(defined herein) and a "DEALER" pursuant to the Dealer Agreement (defined
herein).
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Deed:
"AMENDED AND RESTATED DEALER AGREEMENT" means the Original Dealer
Agreement, as amended and restated by this Deed, on the terms set out in
Schedule 1 hereto;
"AMENDMENT AND RESTATEMENT DATE" means [__] October 2006 or such other date
as the parties hereto may agree in writing;
"MASTER DEFINITIONS SCHEDULE" means the Master Definitions Schedule dated
23 may 2006 between, inter alios, Turquoise Card Backed Securities PLC,
Turquoise Funding 1 Limited, Turquoise Receivables Trustee Limited and HSBC
Bank PLC, as amended, varied, novated or supplemented from time to time;
"ORIGINAL DEALER AGREEMENT" means the dealer agreement dated 23 May 2006
between, inter alios, Turquoise Card Backed Securities PLC, Turquoise
Funding 1 Limited, Turquoise Receivables Trustee Limited and HSBC Bank PLC,
as amended, varied, novated or supplemented from time to time up to (but
not including) the Amendment and Restatement Date; and
▇▇▇▇▇▇▇▇ LIMITED LIABILITY PARTNERSHIP
CHANCE
"RELEVANT AMENDMENTS" means those amendments made or intended to be made to
the Original Agreement pursuant to this Deed; and
"TRANSACTION DOCUMENTS" has the meaning specified in the Master Definitions
Schedule.
1.2 INCORPORATION OF DEFINED TERMS
(a) Unless a contrary indication appears, a term defined in the Amended
and Restated Dealer Agreement has the same meaning in this Deed.
(b) The principles of construction set out in the Amended and Restated
Dealer Agreement shall have effect as if set out in this Deed.
1.3 CLAUSES
(a) In this Deed any reference to a "Clause" or "Schedule" is, unless the
context otherwise requires, a reference to a Clause or Schedule of
this Deed.
(b) Clause and Schedule headings are for ease of reference only.
2. AMENDMENT AND RESTATEMENT
The parties hereto agree that, as from (and including) the Amendment and
Restatement Date, and without prejudice to the terms of the Original Dealer
Agreement governing the rights and obligations of the parties prior to the
Amendment and Restatement Date, to the effect that such rights and
obligations pursuant to the terms of the Original Dealer Agreement shall
continue to be effective up to (but not including) the Amendment and
Restatement Date, the Original Dealer Agreement shall be amended and
restated and shall be read and construed as though it had been duly
executed in the form of the Amended and Restated Dealer Agreement as set
out in Schedule 1 hereto.
3. CONSENT
Notwithstanding any provision in the Original Dealer Agreement or the
Transaction Documents, each of the parties hereto, upon execution of this
Deed, hereby agrees and gives its express written consent to the Relevant
Amendments.
4. CONTINUITY AND FURTHER ASSURANCE
4.1 CONTINUING OBLIGATIONS
The provisions of the Original Dealer Agreement shall, save as amended
pursuant to this Deed, continue in full force and effect.
4.2 FURTHER ASSURANCE
Each of the parties hereto shall, at the request of the other party and at
its own expense, do all such acts and things necessary or desirable to give
effect to the amendments effected or to be effected pursuant to this Deed.
▇▇▇▇▇▇▇▇ LIMITED LIABILITY PARTNERSHIP
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5. INCORPORATION OF TERMS
The provisions of Clause 8 (Obligations as Corporation Obligations), Clause
9 (Non-petition) and Clause 16 (Notices) of the Amended and Restated Dealer
Agreement shall be incorporated into this Deed mutatis mutandis as if set
out in full in this Deed.
6. LAW AND JURISDICTION
6.1 GOVERNING LAW
This Deed and all matters arising from or connected with it are governed
by, and shall be construed in accordance with, English law.
6.2 ENGLISH COURTS
The courts of England have exclusive jurisdiction to settle any dispute (a
"DISPUTE"), arising from or connected with this Agreement (including a
dispute regarding the existence, validity or termination of this Agreement)
or the consequences of its nullity.
6.3 APPROPRIATE FORUM
The parties agree that the courts of England are the most appropriate and
convenient courts to settle any Dispute and, accordingly, that they will
not argue to the contrary.
6.4 CONSENT TO ENFORCEMENT ETC.
Each of the parties consents generally in respect of any Proceedings to the
giving of any relief or the issue of any process in connection with such
Proceedings including (without limitation) the making, enforcement or
execution against any property whatsoever (irrespective of its use or
intended use) of any order or judgment which is made or given in such
Proceedings.
6.5 WAIVER OF IMMUNITY
To the extent that any party hereto may in any jurisdiction claim for
itself or its assets or revenues immunity from suit, execution, attachment
(whether in aid of execution, before judgment or otherwise) or other legal
process and to the extent that such immunity (whether or not claimed) may
be attributed in any such jurisdiction to any party hereto or its
respective assets or revenues, each party agrees not to claim and
irrevocably waives such immunity to the full extent permitted by the laws
of such jurisdiction.
7. COUNTERPARTS
This Deed may be executed in any number of counterparts, each of which
shall be deemed an original. Any party may enter into this Deed by signing
any such counterpart.
8. RIGHTS OF THIRD PARTIES
Without prejudice to the rights of any shareholder, officer, employee,
agent or director to rely on Clauses 8 (Obligations as Corporate
Obligations) and 9 (Non-Petition) of the Amended and Restated Dealer
Agreement, a person who is not a party to this Agreement has no right under
the Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ to enforce any term of
this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Deed to be executed and
delivered by their duly authorised representatives as a deed on the day and year
first before written.
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SCHEDULE 1
AMENDED AND RESTATED DEALER AGREEMENT
DATED [__] OCTOBER 2006
TURQUOISE CARD BACKED SECURITIES PLC
$10,000,000,000
TURQUOISE FUNDING MEDIUM TERM NOTE PROGRAMME
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AMENDED AND RESTATED
DEALER AGREEMENT
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CONTENTS
CLAUSE PAGE
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1. Interpretation....................................................... 2
2. Issuing Notes........................................................ 7
3. Conditions Precedent................................................. 8
4. Undertakings And Indemnity By The Dealers............................ 14
5. Undertakings By The Issuer, The Loan Note Issuer And The
Receivables Trustee............................................... 15
6. Undertakings By The Issuer........................................... 16
7. Representations And Warranties By The Issuer, HSBC, Loan Note
Issuer No.1 And The Receivables Trustee .......................... 20
8. Obligations As Corporate Obligations................................. 34
9. Non-Petition......................................................... 35
10. Covenants Of The Issuer, HSBC, Loan Note Issuer No.1 And The
Receivables Trustee............................................... 35
11. Indemnity By The Issuer, HSBC, Loan Note Issuer No.1 And The
Receivables Trustee............................................... 36
12. Selling Restrictions................................................. 39
13. Authority To Distribute Documents.................................... 39
14. Status Of The Arranger............................................... 40
15. Fees And Expenses.................................................... 40
16. Notices.............................................................. 42
17. Changes In Dealers................................................... 43
18. Increase In Authorised Amount........................................ 44
19. Assignment........................................................... 44
20. Currency Indemnity................................................... 45
21. Law And Jurisdiction................................................. 45
22. Counterparts......................................................... 46
23. Rights Of Third Parties.............................................. 46
SCHEDULE 1 SELLING RESTRICTIONS.......................................... 47
SCHEDULE 2 INITIAL CONDITIONS PRECEDENT.................................. 49
SCHEDULE 3 PRO FORMA SUBSCRIPTION AGREEMENT.............................. 51
SCHEDULE 4 NOTICE AND CONTACT DETAILS.................................... 60
SCHEDULE 5 FORM OF DEALER ACCESSION LETTER............................... 62
SCHEDULE 6 FORM OF NOTICE OF INCREASE OF AUTHORISED AMOUNT............... 64
SCHEDULE 7 FORM OF PRICING ANNEX......................................... 65
SCHEDULE 8 DRAFT PROSPECTUS SUPPLEMENT/FINAL TERMS....................... 71
SCHEDULE 9 DRAFT BASE PROSPECTUS......................................... 72
THIS DEALER AGREEMENT was made on 23 May 2006 and is amended and restated as at
[__] October 2006 pursuant to a deed of amendment dated [__] October 2006
BETWEEN
TURQUOISE CARD BACKED SECURITIES PLC, a public limited liability company
incorporated in England and Wales with company number 5506646 and whose
registered office is at c/o Wilmington Trust SP Services (London) Limited Tower
42 (Level 11), ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (the "ISSUER");
HSBC BANK PLC, a public limited liability company incorporated in England and
Wales (registered number 14259) having its registered office at ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ("HSBC");
TURQUOISE FUNDING 1 LIMITED, a private limited liability company incorporated in
Jersey, Channel Islands, with registration number 92327 and having its
registered office at ▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇ Channel Islands
("LOAN NOTE ISSUER NO.1");
TURQUOISE RECEIVABLES TRUSTEE LIMITED, a private limited company incorporated
under the laws of Jersey, Channel Islands with company number 92324 and having
its registered office at ▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇ Channel
Islands ("RECEIVABLES TRUSTEE"); and
HSBC BANK PLC as the arranger (the "ARRANGER") and as a dealer (a "DEALER" and
the expression "DEALERS" shall include any institution(s) appointed as a Dealer
in accordance with Clause 17.1.2 (New Dealer) or Clause 17.1.3 (Dealer for a
Day), and save as specified herein, exclude any institutions(s) whose
appointment as a Dealer has been terminated in accordance with Clause 17.1.1
(Termination) or which has resigned in accordance with Clause 17.2 (Resignation)
PROVIDED THAT where any such institution has been appointed as Dealer in
relation to a particular Class or Sub-Class of Notes of a Series (as defined
below) the expression "DEALER" or "DEALERS" shall only mean or include such
institution in relation to such Class or Sub-Class).
WHEREAS
(A) The Issuer has established a medium term note programme (the "PROGRAMME")
for the issuance of notes from time to time (the "NOTES"), in connection
with which the Issuer will enter into the Agency Agreement and the Issuer
will execute and deliver the Trust Deed (and Trust Deed Supplement, as
applicable) referred to below.
(B) Notes may be issued on the basis that they may be admitted to listing,
trading and/or quotation by one or more listing authorities, stock
exchanges and/or quotation systems. The Issuer has made application for
Notes issued under the Programme to be admitted to listing on the Official
List of the Financial Services Authority (in its capacity as competent
authority for the purposes of Part VI of the FSMA, the "UK LISTING
AUTHORITY") and to trading on the Gilt Edged and Fixed Interest Market of
the London Stock Exchange plc (the "LONDON STOCK EXCHANGE").
(C) In connection with the Programme, the Issuer prepared a prospectus dated
[__] October 2006, which constituted a Base Prospectus (defined below) for
the purposes of Article 5.4 of the Prospectus Directive.
(D) For the purpose of offering and selling Notes in circumstances which would
require registration under the Securities Act (an "SEC REGISTERED NOTE
ISSUANCE"), the Issuer has prepared and the Loan Note Issuer and the
Receivables Trustee have filed with the US Securities and Exchange
Commission (the "SEC") a Registration Statement on Form S-3 (File No. 333
- 136826) in respect of the Notes, which includes a prospectus and the
form of US Prospectus Supplement.
(E) Notes issued under the Programme may be issued either (1) pursuant to the
Base Prospectus (as defined below) describing the Programme and associated
Prospectus Supplement/Final Terms (as defined below) describing the final
terms of the particular Series of Notes or (2) pursuant to a Drawdown
Prospectus (as defined below) containing all information relevant to the
particular Series of Notes; PROVIDED THAT in the case of an SEC Registered
Note Issuance, the offer and sale of the corresponding Notes will be made
only pursuant to a US Prospectus.
(F) In connection with any offer and sale of a Series of Notes, the Issuer will
prepare (1) a set of Preliminary Prospectus Supplement/Final Terms (as
defined below); (2) a Pricing Annex (as defined below); and (3) a set of
Prospectus Supplement/Final Terms (as defined below).
(G) The parties wish to record the arrangements agreed between them in relation
to the issue by the Issuer and the subscription by Dealers from time to
time of Notes issued under the Programme.
IT IS AGREED as follows:
1. INTERPRETATION
1.1 Definitions
All terms and expressions which have defined meanings in the Base
Prospectus shall have the same meanings in this Agreement except where the
context requires otherwise or unless otherwise stated. In addition, in
this Agreement the following expressions have the following meanings:
this "AGREEMENT" includes any amendment or supplement hereto (including
any confirmation or agreement given or executed pursuant to Clause 25.1(b)
(New Dealer) or Clause 25.1(c) (Dealer for a Day) whereby an institution
becomes a Dealer hereunder but excluding any Relevant Agreement) and the
expressions "herein" and "hereto" shall be construed accordingly;
"APPLICABLE TIME" with respect to any Series of Notes, has the meaning set
forth in the related Subscription Agreement;
"AUTHORISED AMOUNT" means, at any time, the amount of $10,000,000,000
subject to any increase as may have been authorised pursuant to Clause 26
(Increase in Authorised Amount);
"BASE PROSPECTUS" means all of the following: (i) the draft base
prospectus prepared in connection with the Programme a copy of which is
attached as Schedule 9 hereto and (ii) the base prospectus dated [__]
October 2006 prepared in connection with the Programme which constitutes a
base prospectus for the purposes of Article 5.4 of the Prospectus
Directive, as revised, supplemented and/or amended from time to time by
the Issuer in accordance with Clause 14.8 (Updating of the Base
Prospectus) including any documents which are from time to time
incorporated in the Base Prospectus by reference except that:
(a) in relation to each Series of Notes, only the applicable Prospectus
Supplement/Final Terms shall be deemed to be included in the Base
Prospectus; and
(b) for the purposes of Clause 15 (Representations and Warranties by the
Issuer, HSBC, Loan Note Issuer No.1 and the Receivables Trustee) in
respect of the date upon which the Relevant Agreement is made and
the Issue Date, the Base Prospectus means the Base Prospectus as at
the date of the Relevant Agreement, but not including any subsequent
revision, supplement or amendment to it or incorporation of
information in it;
"CLOSING DATE" has the meaning given in the relevant Prospectus
Supplement/Final Terms;
"DISCLOSURE PACKAGE" with respect to any Series of Notes, has the meaning
set forth in the related Subscription Agreement;
"DOCUMENTS" means the Trust Deed, any applicable Trust Deed Supplement,
the Agency Agreement, Note Master Framework Agreement, the Receivables
Trust Deed and Servicing Agreement and the Security Trust Deed (as each
document may be amended, restated or supplemented from time to time);
"DRAWDOWN PROSPECTUS" means a prospectus relating to a particular Series
of Notes to be issued under the Programme, which has been approved by the
relevant competent authority of a Member State in accordance with the
Prospectus Directive and relevant implementing measures and which shall
include all information included or incorporated by reference therein;
"EC MONEY LAUNDERING DIRECTIVE" means Directive 2001/97/EC of the European
Parliament and of the Council of 4 December 2001 amending Council
Directive 91/308/EEC on Prevention of the Use of the Financial System for
the Purpose of Money Laundering;
"EFFECTIVE DATE" shall mean (i) each date that the Registration Statement
or the most recent post-effective amendment or amendments thereto, if any,
became or become effective under the Securities Act; or (ii) each date
which, pursuant to Rule 430B
under the Securities Act, is deemed to be a new effective date of the
Registration Statement;
"EVENT OF DEFAULT" means one of those circumstances described in Condition
11 (Events of Default);
"EXCHANGE ACT" means the United States Securities Exchange Act of 1934;
"EXECUTION TIME" means the date and time that this Agreement or any
Relevant Agreement is executed and delivered by the parties hereto or
thereto;
"FINAL DISCHARGE DATE" means the date on which the Trustee notifies the
Issuer that it is satisfied that all amounts secured pursuant to the Trust
Deed and/or all other moneys and other liabilities due or owing by the
Issuer have been paid or discharged in full;
"FINAL OFFERING DOCUMENT" with respect to any Series of Notes, means the
related set of Prospectus Supplement/Final Terms, together with the
accompanying Base Prospectus;
"FSMA" means the Financial Services and Markets ▇▇▇ ▇▇▇▇;
"IFRS" means International Financial Reporting Standards in force as at
the Issue Date of the relevant Series of Notes;
"INSOLVENCY OFFICIAL" means, in connection with any Insolvency
Proceedings, in relation to a company a liquidator, provisional
liquidator, administrator, administrative receiver, receiver or manager,
nominee, supervisor, trustee, conservator, guardian or other similar
official in respect of such company or in respect of all (or substantially
all) of the company's assets or in respect of any arrangement or
composition with creditors;
"INSOLVENCY PROCEEDINGS" means, in respect of a company, the winding-up,
dissolution or administration of such company or any equivalent or
analogous proceedings under the law of the jurisdiction in which such
company is incorporated or of any jurisdiction in which such company
carries on business including the seeking of liquidation, winding-up,
reorganisation, dissolution, administration, arrangement, adjustment,
protection or relief of debtors;
"ISSUE DATE" has, with respect to any Notes issued under the Programme,
the meaning ascribed to such term in the Relevant Agreement corresponding
to such Notes;
"LONDON STOCK EXCHANGE" means the London Stock Exchange plc's Gilt Edged
and Fixed Interest Market or any other body to which its functions have
been transferred;
"LOSS" means any liability, damages, cost properly incurred, loss, demand
or expense (including, without limitation, legal fees, costs and expenses
reasonably incurred);
"MANDATED DEALER" means, in relation to a Relevant Agreement which is made
between the Issuer and more than one Dealer, the institution specified as
such or as the Lead Dealer in the relevant Prospectus Supplement/Final
Terms or in the relevant
Drawdown Prospectus and/or in such Relevant Agreement; and, in relation to
a Relevant Agreement which is made between the Issuer and a single Dealer,
such Dealer;
"NOTE MASTER FRAMEWORK AGREEMENT" means the master framework agreement
dated 23 May 2006 entered into by, inter alios, the Issuer and the Note
Trustee;
"OBLIGATIONS" means all of the obligations of the Issuer, the Loan Note
Issuer No.1 and the Receivables Trustee, as applicable, created by or
arising under any Series of Notes and the Relevant Documents;
"PRELIMINARY DRAWDOWN PROSPECTUS" means a Drawdown Prospectus in draft
form which may be circulated to potential investors;
"PRELIMINARY OFFERING DOCUMENT" with respect to any Series of Notes means
the related set of Preliminary Prospectus Supplement/Final Terms together
with the accompanying Base Prospectus;
"PRELIMINARY PROSPECTUS SUPPLEMENT/FINAL TERMS" means the draft Prospectus
Supplement/Final Terms attached as Schedule 8;
"PRICING ANNEX" means a term sheet substantially in the form set out in
Schedule 7 (Form of Pricing Annex) hereto;
"PROSPECTUS DIRECTIVE" means Directive 2003/71/EC;
"PROSPECTUS RULES" means:
(a) in the case of Notes which are, or are to be, admitted to the
Official List and admitted to trading on the London Stock Exchange,
the prospectus rules made under the FSMA; and
(b) in the case of Notes which are, or are to be, listed on a Stock
Exchange other than the London Stock Exchange, the legal provisions
and/or the rules and regulations relating to prospectuses for the
time being in force for that Stock Exchange;
"PROSPECTUS SUPPLEMENT/FINAL TERMS" means the Prospectus Supplement/Final
Terms document substantially in the form set out in the Base Prospectus
which will be completed at the time of the agreement to issue each Series
of Notes and which will constitute final terms for the purposes of Article
5.4 of the Prospectus Directive;
"REGISTRATION STATEMENT" means the registration statement referred to in
recital "(D)" to this Agreement, including all exhibits thereto and any
material incorporated therein by reference, as amended at the Effective
Date;
"RECEIVER" means any receiver, manager, receiver or administrative
receiver appointed in respect of the Issuer by the Note Trustee in
accordance with the Trust Deed;
"RELATED PARTY" means, in respect of any person, any affiliate of that
person or any officer, director, employee or agent of that person or any
such affiliate or any person by whom any of them is controlled for the
purposes of the Securities Act;
"RELEVANT AGREEMENT" means an agreement in writing between the Issuer and
any Dealer(s) for the issue by the Issuer and the subscription by such
Dealer(s) (or on such other basis as may be agreed between the Issuer and
the relevant Dealer(s) at the relevant time) of any Notes and shall
include, without limitation, any agreement in the form or based on the
form set out in Schedule 3 (Pro Forma Subscription Agreement);
"RELEVANT DEALER(S)" means, in relation to a Relevant Agreement, the
Dealer(s) which is/are party to that Relevant Agreement;
"RELEVANT DOCUMENTS" means the Trust Deed Supplement, the relevant Loan
Note Supplement, the relevant RTDSA Supplement, the relevant Prospectus
Supplement/Final Terms and any applicable Relevant Agreement;
"SECURITIES ACT" means the United States Securities Act of 1933;
"SERIES" means those Notes of the same class and with the same terms and
conditions issued in accordance with a particular Prospectus
Supplement/Final Terms;
"STABILISING DEALER" means, in relation to any Series, the Dealer
specified as the Stabilising Dealer in the relevant Prospectus
Supplement/Final Terms or the relevant Drawdown Prospectus relating to
such Series;
"STOCK EXCHANGE" means the London Stock Exchange and/or any other or
future stock exchanges or markets or quotation systems by which any Notes
may from time to time be admitted to listing, trading and/or quotation,
and references in this Agreement to the "RELEVANT STOCK EXCHANGE" shall,
in relation to any Notes, be references to the listing authorities, stock
exchanges or quotation systems by which such Notes are from time to time,
or are intended to be, admitted to listing, trading and/or quotation as
may be specified in the relevant Prospectus Supplement/Final Terms;
"SUBSCRIPTION AGREEMENT" means each subscription agreement in the form or
based on the form set out in Schedule 3 (Pro Forma Subscription
Agreement);
"TERMS AND CONDITIONS" means, in relation to any Series (i) the terms and
conditions applicable to such Notes set out in the Base Prospectus as
amended, supplemented and/or replaced by the relevant Prospectus
Supplement/Final Terms, (ii) the terms and conditions applicable to such
Notes contained in the Drawdown Prospectus; and any reference to a
numbered "CONDITION" is to the correspondingly numbered provision thereof,
or (iii) in the case of an SEC Registered Note Issuance, the terms and
conditions applicable to such Notes as set out in the US Prospectus used
in connection with the offer and sale of such Notes;
"TRANSPARENCY DIRECTIVE" means the Directive 2004/104/EC approved on 15
December 2004 by the European Parliament and the Council on the
harmonisation of
transparency requirements with regard to information about issues whose
securities are admitted to trading on a regulated market and amending
Directive 2001/31/EC;
"UKLA" means the UK Listing Authority, which is the Financial Services
Authority in its capacity as the competent authority for the purposes of
Part VI of the FSMA;
"US PROSPECTUS" means the prospectus filed with the SEC as part of the
Registration Statement, in the form most recently revised and filed with
the SEC pursuant to Rule 424(b), together with the corresponding US
Prospectus Supplement;
"US PROSPECTUS SUPPLEMENT" means (i) any prospectus supplement relating to
the Notes to be filed or filed with the SEC pursuant to Rule 424(b) under
the Securities Act; and (ii) information in any current or periodic
reports filed pursuant to Section 13 or 15(d) of the Exchange Act that is
incorporated or deemed incorporated by reference into, or included in, the
prospectus that is part of the Registration Statement as from time to time
amended;
"VAT" means, and shall be construed as a reference to, value added tax as
imposed by VATA and related legislation, and includes any tax of a similar
fiscal nature, whether imposed in the United Kingdom (instead of or in
addition to VAT) or elsewhere; and
"VATA" means the Value Added Tax ▇▇▇ ▇▇▇▇.
1.2 Clauses and Schedules
Any reference in this Agreement to a Clause, a Sub-Clause or a Schedule
is, unless otherwise stated, to a clause or sub-clause hereof or a
schedule hereto.
1.3 Legislation
Any reference in this Agreement to any legislation (whether primary
legislation or regulations or other subsidiary legislation made pursuant
to primary legislation) shall be construed as a reference to such
legislation as the same may have been, or may from time to time be,
amended or re-enacted.
1.4 Other agreements
Subject to Clause 14.7 (Incorporation, supplements and amendments) and
save as set out in the exception to the definition of "BASE PROSPECTUS"
above, all references in this Agreement to an agreement, instrument or
other document (including the Agency Agreement, the Trust Deed (and Trust
Deed Supplement, as applicable), the Base Prospectus and each, if any,
Drawdown Prospectus) shall be construed as a reference to that agreement,
instrument or other document as the same may be amended, supplemented,
replaced or novated from time to time.
1.5 Headings
Headings and sub-headings are for ease of reference only and shall not
affect the construction of this Agreement.
2. ISSUING NOTES
2.1 Basis of agreements to issue; uncommitted facility
The Issuer and the Dealers agree that any Notes which may from time to
time be agreed between the Issuer and any Dealer(s) to be issued by the
Issuer and subscribed by such Dealer(s) shall be issued and subscribed for
on the basis of, and in reliance upon, the representations, warranties,
undertakings and indemnities made or given or provided to be made or given
pursuant to the terms of this Agreement. Unless otherwise agreed, neither
the Issuer nor any Dealer(s) is, are or shall be under any obligation to
issue or subscribe for any Notes.
2.2 Procedures
Upon the conclusion of any Relevant Agreement and subject as provided in
Clause 11.1 (Conditions Precedent to First Issue of Notes):
2.2.1 Confirmation of terms by Mandated Dealer: the Mandated Dealer(s)
shall promptly confirm the terms of the Relevant Agreement to the
Issuer and HSBC in writing;
2.2.2 Preparation of Prospectus Supplement/Final Terms or a Drawdown
Prospectus: the Issuer will prepare for approval (such approval not
to be unreasonably withheld or delayed) by the Mandated Dealer(s)
and execution on behalf of the Issuer:
(a) Prospectus Supplement/Final Terms in relation to the relevant
Notes;
(b) a Drawdown Prospectus in relation to the relevant Notes; or
(c) in the case of an SEC Registered Note Issuance, a US
Prospectus or US Prospectus Supplement, as applicable, in
relation to the relevant Notes;
2.2.3 Issue of Notes: the Issuer shall on the agreed Issue Date of the
relevant Notes procure the issue of such Notes in the relevant form
(subject to amendment and completion) and shall procure their
delivery to or to the order of the Relevant Dealer(s);
2.2.4 Payment of net proceeds: the Relevant Dealer(s) shall for value on
the agreed Issue Date of the relevant Notes procure the payment to
the Issuer of the net proceeds of the issue of the Notes (namely,
the agreed issue price thereof less any agreed commissions,
concessions or other agreed deductibles due to be paid by the
Issuer);
2.2.5 Single Dealer Drawdown: where a single Dealer has agreed with the
Issuer to subscribe a particular Class or Sub-Class of Notes of a
Series pursuant to this Clause 2 (Issuing Notes), if requested by
the Relevant Dealer in relation to such Notes the Issuer and the
Relevant Dealer shall enter into a subscription agreement based on
the form set out in Schedule 3 (Pro Forma Subscription Agreement) or
such other form as may be agreed between the Issuer and the Relevant
Dealer;
2.2.6 Syndicated Drawdown: where more than one Dealer has agreed with the
Issuer to subscribe a particular Class or Sub-Class of Notes of a
Series pursuant to this Clause 2 (Issuing Notes), unless otherwise
agreed between the Issuer and the Relevant Dealers:
(a) the obligations of the Relevant Dealers so to subscribe the
relevant Notes shall be joint and several; and
(b) in relation to such Notes the Issuer and the Relevant Dealers
shall enter into a subscription agreement in the form or based
on the form set out in Schedule 3 (Pro Forma Subscription
Agreement) or such other form as may be agreed between the
Issuer and the Relevant Dealers.
3. CONDITIONS PRECEDENT
3.1 Conditions precedent to first issue of Notes
Before any Notes may be issued under the Programme, each Dealer must have
received and found satisfactory all of the documents and confirmations
described in Schedule 2 (Initial Conditions Precedent). Each Dealer will
be deemed to have received and found satisfactory all of such documents
and confirmations unless, within five London business days of receipt of
such documents and confirmations, it notifies the Issuer and the other
Dealers to the contrary. The obligations of the Dealers under Clause
10.2(d) (Payment of Net Proceeds) are conditional upon each Dealer having
received and found satisfactory (or being deemed to have received and
found satisfactory) all of the documents and confirmations described in
Schedule 2 (Initial Conditions Precedent).
3.2 Conditions precedent to any issue of Notes
In respect of any issue of Notes under the Programme, the obligations of
the Relevant Dealer(s) under Clause 10.2(d) (Payment of Net Proceeds) are
conditional upon:
3.2.1 Execution and delivery of the US Prospectus, Prospectus
Supplement/Final Terms (or a Drawdown Prospectus) and Note
Certificates: the relevant US Prospectus, Prospectus
Supplement/Final Terms (or, as the case may be, Drawdown Prospectus)
and the relevant Note Certificates having been executed and
delivered by the Issuer in accordance with the terms of this
Agreement, the Relevant Agreement and the Agency Agreement in the
respective forms agreed between the Issuer and the Relevant
Dealer(s);
3.2.2 In the case of an SEC Registered Note Issuance:
(a) Effective Registration Statement: the Registration Statement,
or any post-effective amendment thereto, having become
effective before the Execution Time of the Relevant Agreement,
or, if it hasn't and the Relevant Dealers so agree in writing,
its becoming effective no later than (i) 6:00 p.m. (New York
City time) on the date of determination of the public offering
price of the relevant Notes, if such determination occurred at
or before 3:00 p.m. (New York City time) on such date, or
(ii) 12:00 noon on the business day following the date on
which the public offering price was determined, if such
determination occurred after 3:00 p.m. (New York City time) on
such date;
(b) No stop order: no stop order suspending the effectiveness of
the Registration Statement having been issued, and no
proceedings for that or similar purpose having been instituted
or threatened by the SEC or by any authority administering any
state securities laws;
(c) Filings: if pursuant to Rule 430B or Rule 424(b) under the
Securities Act such filing is required in respect of the Notes
to be issued on the Issue Date, a US Prospectus, or US
Prospectus Supplement, as applicable, having been filed in
compliance with the provisions of such Rule;
3.2.3 No material adverse change: since the date of the Relevant
Agreement, there having been no adverse change, or any development
reasonably likely to involve an adverse change, in the condition
(financial or other) or general affairs of the Issuer, HSBC, the
Receivables Trustee or the Loan Note Issuer No.1 that is material in
the context of the issue of the relevant Notes;
3.2.4 Accuracy of representations and warranties: the representations and
warranties by the Issuer, HSBC, the Receivables Trustee and Loan
Note Issuer No.1 contained herein or in any Relevant Agreement being
true and accurate on the date of the Relevant Agreement and on each
date on which they are deemed to be repeated with reference in each
case to the facts and circumstances then subsisting;
3.2.5 No breach: the Issuer, HSBC, the Receivables Trustee and the Loan
Note Issuer No.1 not being in breach of this Agreement, the Relevant
Agreement or any Relevant Document relevant to a proposed issue of
Notes;
3.2.6 Force majeure: there having been, since the date of the Relevant
Agreement and in the reasonable opinion of the Mandated Dealer (or,
if only one Relevant Dealer, the reasonable opinion of the Relevant
Dealer), after consultation with the Issuer as may be reasonably
practicable in the circumstances, no such change in national or
international financial, political or economic conditions or
currency exchange rates or exchange controls as would, in its view,
be likely to prejudice materially the success of the offering and
distribution of the Notes or dealings in the Notes in the secondary
market;
3.2.7 No adverse change of rating: on or prior to the closing date for the
issue of Notes contemplated by the Relevant Agreement, the delivery
to the Mandated Dealer (or, if only one Relevant Dealer, the
delivery to the Relevant Dealer) of unconditional confirmation from
each of the Rating Agencies in the form acceptable to the Mandated
Dealer (or, if only one Relevant Dealer, in the form acceptable to
the Relevant Dealer) that upon issue the Notes contemplated by the
Relevant Agreement are expected to be rated as
previously agreed between the Issuer and the Mandated Dealer (or
the Relevant Dealer, as applicable);
3.2.8 Listing: in respect of any issue of Notes which are to be admitted
to listing, trading and/or quotation by any Stock Exchange, the
Mandated Dealer having received confirmation that the relevant Notes
have, subject only to the execution, authentication and delivery of
the relevant global note certificates, been admitted to listing,
trading and/or quotation by the relevant Stock Exchange;
3.2.9 Certificate: if there is more than one Relevant Dealer, a
certificate dated as at the relevant Issue Date signed by a director
or other equivalent senior officer of:
(a) the Issuer to the effect that to the best of its knowledge and
belief:
(i) the information relating to the Issuer contained in the
Base Prospectus, or the US Prospectus, as applicable, is
complete and accurate and does not omit any material
information in relation to the Issuer which would
require the Base Prospectus, or the US Prospectus, as
applicable, to be supplemented or updated;
(ii) the representations and warranties made by the Issuer
pursuant to Clause 6 (Representations and Warranties by
the Issuer, HSBC, Loan Note Issuer No.1 and the
Receivables Trustee) are true and correct in all
material respects;
(iii) the Issuer is in compliance with its undertakings under
Clause 6 (Undertakings by the Issuer); and
(iv) the certified copies of the constitutive documents of
the Issuer submitted under Clause 3.1 (Conditions
precedent to first issue of Notes) on the first issue or
any subsequent issue of Notes, as applicable, under the
Programme are accurate and up-to-date (and, to the
extent any such constitutive documents have changed
since the first issue or any subsequent issue, as
applicable, they have been updated).
(b) HSBC to the effect that to the best of its knowledge and
belief:
(i) the information relating to HSBC contained in the Base
Prospectus, or the US Prospectus, as applicable, is
complete and accurate and does not omit any material
information in relation to HSBC which would require the
Base Prospectus, or the US Prospectus, as applicable, to
be supplemented or updated;
(ii) the representations and warranties made by HSBC pursuant
to Clause 15 (Representations and Warranties by the
Issuer, HSBC,
Loan Note Issuer No.1 and the Receivables Trustee) are
true and correct in all material respects; and
(iii) the certified copies of the constitutive documents of
HSBC submitted under Clause 11.1 (Conditions Precedent
to First Issue of Notes) on the first issue or any
subsequent issue of Notes, as applicable, under the
Programme are accurate and up-to-date (and, to the
extent any such constitutive documents have changed
since the first issue or any subsequent issue, as
applicable, they have been updated).
(c) the Receivables Trustee to the effect that to the best of its
knowledge and belief:
(i) the information relating to the Receivables Trustee
contained in the Base Prospectus, or the US Prospectus,
as applicable, is complete and accurate and does not
omit any material information in relation to the
Receivables Trustee in the context of the issue of the
Notes which would require the Base Prospectus, or the US
Prospectus, as applicable, to be supplemented or
updated;
(ii) the representations and warranties made by the
Receivables Trustee pursuant to Clause 15
(Representations and Warranties by the Issuer, HSBC,
Loan Note Issuer No.1 and the Receivables Trustee) are
true and correct in all material respects; and
(iii) the certified copies of the constitutive documents of
the Receivables Trustee submitted under Clause 11.1
(Conditions Precedent to First Issue of Notes) on the
first issue or any subsequent issue of Notes, as
applicable, under the Programme are accurate and
up-to-date (and, to the extent any such constitutive
documents have changed since the first issue or any
subsequent issue, as applicable, they have been
updated).
(d) the Loan Note Issuer No.1 to the effect that to the best of
its knowledge and belief:
(i) the information relating to the Loan Note Issuer No.1
contained in the Base Prospectus, or the US Prospectus,
as applicable, is complete and accurate and does not
omit any material information in relation to the Loan
Note Issuer No.1 in the context of the issue of the
Notes which would require the Base Prospectus, or the US
Prospectus, as applicable, to be supplemented or
updated;
(ii) the representations and warranties made by the Loan Note
Issuer No.1 pursuant to Clause 15 (Representations and
Warranties by the Issuer, HSBC, Loan Note Issuer No.1
and the Receivables Trustee) are true and correct in all
material respects; and
(iii) the certified copies of the constitutive documents of
the Loan Note Issuer No.1 submitted under Clause 11.1
(Conditions Precedent to First Issue of Notes) on the
first issue or any subsequent issue of Notes, as
applicable, under the Programme are accurate and
up-to-date (and, to the extent any such constitutive
documents have changed since the first issue or any
subsequent issue, as applicable, they have been
updated).
3.2.10 Calculations or determinations: any calculations or
determinations which are required by the Terms and Conditions of
the relevant Notes to be made prior to the date of issue of such
Notes having been duly made;
3.2.11 Legal opinions and comfort letters, etc.: the Mandated Dealer
having received such legal opinions and comfort letters as may be
required to be delivered pursuant to Clauses 14.12 (Legal
Opinions) and 14.13 (Auditors' Comfort Letters) and such other
opinions, documents, certificates, agreements or information
specified in the Relevant Agreement as being conditions precedent
to the subscription of the relevant Notes (in each case in a form
satisfactory to the Mandated Dealer);
3.2.12 U.S. Tax Treatment Opinion: the Mandated Dealer having received a
US tax opinion regarding the tax treatment of each Series of
Notes to be issued;
3.2.13 Authorised Amount: the Issuer not issuing Notes under the
Programme which will cause the outstanding amount of Notes to
exceed the Authorised Amount, as may be amended from time to
time;
3.2.14 UKLA listing issues: in the case of Notes which are intended to
be admitted to trading on a regulated market of an European
Economic Area stock exchange or offered to the public in an
European Economic Area Member State on or after the relevant
implementation date:
(a) the Specified Denominations being (euro)50,000 or more, or
its equivalent in another currency;
(b) the Base Prospectus having been approved as a base
prospectus by the UKLA (in the case of a Base Prospectus
approved by the UKLA) and filed with the UKLA and having
been published in accordance with the Prospectus Directive;
and
(c) either (A) there being no significant new factor, material
mistake or inaccuracy relating to the information included
in the Base Prospectus which is capable of affecting the
assessment of the Notes which are intended to be listed or
(B) if there is such a significant new factor, material
mistake or inaccuracy, a supplement to the Base Prospectus
having been published in accordance with the Prospectus
Directive; and
3.2.15 Inaccuracy or mistakes: in the case of an SEC Registered Note
Issuance, (A) there being no significant new factor, material
mistake or inaccuracy relating
to the information included in the US Prospectus which is capable
of affecting the assessment of the Notes which are intended to be
listed or (B) if there is such a significant new factor, material
mistake or inaccuracy, a supplement to the US Prospectus or an
amendment to the Registration Statement having been filed in
accordance with the relevant legislation.
3.3 Waiver of conditions precedent
The Mandated Dealer may, in its absolute discretion, waive any of the
conditions contemplated in Clause 11.1 (Conditions Precedent to First
Issue of Notes) and Clause 11.2 (Conditions Precedent to Any Issue of
Notes) by notice in writing to the Issuer, subject to the following
provisions:
3.3.1 Authorised Amount: it may not waive the condition contained in
Clause 11.2(l) (Authorised Amount) or the condition contained in
Clause 11.2(n);
3.3.2 Relevant Agreement: any such waiver shall apply to such conditions
only as they relate to the Notes the subject of the Relevant
Agreement;
3.3.3 Relevant Dealers: where there is more than one Dealer party to the
Relevant Agreement, any such waiver shall be given on behalf of the
other Dealer(s) party to the Relevant Agreement in question;
3.3.4 Specific waiver: any condition so waived shall be deemed to have
been satisfied as regards such Dealer(s) alone and only for the
purposes specified in such waiver.
3.4 Termination of Relevant Agreement
If any of the conditions contemplated in Clause 11.1 (Conditions
Precedent to First Issue of Notes) and Clause 11.2 (Conditions
Precedent to Any Issue of Notes) is not satisfied or, as the case may
be, waived by the Mandated Dealer on or before the Issue Date of any
relevant Notes, the Mandated Dealer shall, subject as mentioned below,
be entitled to terminate the Relevant Agreement and, in that event,
the parties to such Relevant Agreement shall be released and
discharged from their respective obligations thereunder (except for
any rights or liabilities which may have arisen pursuant to Clause 12
(Undertaking and Indemnity by the Dealers), Clause 6 (Undertaking by
the Issuer), Clause 15 (Representations and Warranties by the Issuer,
HSBC, Loan Note Issuer No.1 and the Receivables Trustee), Clause 16
(Obligations as Corporate Obligations), Clause 17 (Non-Petition),
Clause 18 (Covenant of the Issuer, HSBC, Loan Note Issuer No.1 and the
Receivables Trustee) and Clause 19 (Indemnity of the Issuer, HSBC,
Loan Note Issuer No.1 and the Receivables Trustee) of this Agreement
or any liability of the Issuer (under the terms of the Relevant
Agreement) incurred prior to or in connection with such termination).
3.5 Stabilising
In connection with the issue of any Series of Notes, the Dealer or
Dealers (if any) named as the Stabilising Manager(s) in the relevant
Prospectus Supplement/Final Terms (or persons acting on behalf of any
Stabilising Manager(s)) may over-allot Notes (provided that, in the
case of any Notes to be admitted to trading on the
regulated market of the London Stock Exchange, the aggregate principal
amount of Notes allotted does not exceed 105 per cent. of the
aggregate principal amount of the relevant Notes) or effect
transactions with a view to supporting the market price of the Notes
at a level higher than that which might otherwise prevail. However,
there is no assurance that the Stabilising Manager(s) (or persons
acting on behalf of a Stabilising Manager) will undertake
stabilisation action. Any stabilisation action may begin at any time
after the date on which adequate public disclosure of the final terms
of the offer of the relevant Notes is made and, if begun, may be ended
at any time, but it must end no later than the earlier of 30 days
after the issue date of the relevant Notes and 60 days after the date
of the allotment of the relevant Notes. Such stabilising shall be
conducted in accordance with all applicable laws and rules. Any loss
or profit sustained as a consequence of any such over-allotment or
stabilising shall, as against the Issuer, be for the account of the
Stabilising Dealer.
4. UNDERTAKINGS AND INDEMNITY BY THE DEALERS
4.1 Each of the Dealers, severally:
4.1.1 acknowledges, undertakes, warrants and represents to the Issuer in
the terms set out in Schedule 1 (Selling Restrictions); and
4.1.2 undertakes to the Issuer, HSBC, Loan Note Issuer No.1 and the
Receivables Trustee, respectively, that it will not make any
representation or provide any information regarding the Issuer,
HSBC, Loan Note Issuer No.1, the Receivables Trustee or the Notes
save (i) as contained in the Base Prospectus or US Prospectus, or
any Preliminary Prospectus Supplement/Final Terms and Prospectus
Supplement/Final Terms (or Preliminary Drawdown Prospectus and
Drawdown Prospectus) (or in any further supplement or amendment
thereto published after the date hereof), or (ii) which is in the
public domain and which it would be reasonable for the Dealers to
distribute, or (iii) as approved for such purpose by the Issuer,
HSBC, Loan Note Issuer No.1 and the Receivables Trustee respectively
or which is a matter of public knowledge.
4.2 each dealer shall indemnify and hold harmless the issuer, HSBC, loan note
issuer no.1 and the receivables trustee and their respective directors,
employees and affiliates from and against any and all losses, liabilities,
costs, claims, damages, expenses or demands (or action in respect thereof)
which any of them may incur or which may be made against any of them, in
relation to or in connection with any inaccuracy of any representation and
warranty or any breach or alleged breach of any undertaking or agreement
by such dealer or any of its agents in this agreement and will immediately
reimburse on demand each of the issuer, HSBC, loan note issuer no.1 and
the receivables trustee for all costs, charges and expenses which any of
them may reasonably pay or properly incur in connection with
investigating, disputing or defending any action or claim as such costs,
charges and expenses are incurred. this indemnity will be in addition to
any liability which any dealer may otherwise havE.
5. UNDERTAKINGS BY THE ISSUER, THE LOAN NOTE ISSUER AND THE RECEIVABLES
TRUSTEE
Each of the Issuer, the Loan Note Issuer and the Receivables Trustee
undertakes to the Dealers (and in the case of Clause 5.1 and 5.4 only,
undertakes to each other) as follows:
5.1 Rule 424(b) filings: each time that, pursuant to Rule 424(b) under the
securities act, a filing is required in respect to notes to be issued
under the programme, it will file, or cause to be filed, with the sec,
within the time period prescribed by Rule 424(b) and otherwise in
compliance with such rule, a US Prospectus or US Prospectus supplement, as
applicable, and will promptly advise, and provide evidence satisfactory to
the mandated dealer, of such filing;
5.2 Certain sec notices: it will promptly advise the mandated dealers of, on
becoming aware of same, (i) any proposal to amend or supplement the
registration statement or the US Prospectus and it will not effect such
amendment or supplement without the consent of the mandated dealers (which
consent will not be unreasonably withheld or delayed); (ii) any request by
the sec for any amendment or supplement to the registration statement or
the US Prospectus or for any additional information; (iii) the issuance by
the sec of any stop order suspending the effectiveness of the registration
statement or the institution or threat of any proceeding for such purpose;
and (iv) the existence of any proceedings for the purpose of suspending
the qualification of the notes for sale in any jurisdiction (it being
understood that each of the issuer, the loan note issuer and the
receivables trustee will use its best efforts to prevent the issuance of
any such stop order, or the suspension of such qualification of the notes
for sale or to cause the lifting as soon as possible of any such stop
order or suspension of qualification);
5.3 Certain sec filings: at any time while the relevant dealers have not
completed the distribution of any series issued under the programme, it
will not file, or cause to be filed, with the sec any amendment to the
registration statement, supplement to the US Prospectus, US Prospectus
supplement or "issuer free writing prospectus" (as such term is defined in
Rule 433(h) under the securities act) unless a copy has been furnished to
the relevant dealers prior to such filing and the relevant dealers have
not objected to it;
5.4 Amendments to US Prospectus: (i) if, at any time when a prospectus
relating to the notes of any series is required to be delivered pursuant
to the provisions of the securities act and rules of the sec thereunder,
any event occurs of which it is aware as a result of which the us
prospectus, in its current form at the time, would include any untrue
statement of a material fact, or omit to state any material fact necessary
to make the statements therein, in light of the circumstances under which
they were made, not misleading or (ii) if it is necessary to supplement
the US Prospectus, in its current form at such time, to comply with the
securities act, the exchange act, or the rules of the sec thereunder, it
will (subject to the provisions of 5.2 and 5.3 above) prepare and file, or
cause to be prepared and filed, with the sec an amendment or supplement
which will correct such statement or omission or an amendment or
supplement which will effect such compliance; provided that any such
filing will not operate as a waiver by the dealers of any remedies to
which they may be entitled hereunder;
5.5 SEC copies of filings: (in the case of the issuer only) it will furnish,
or cause to be furnished to the dealers, copies of the registration
statement (one of which will be manually signed), the US Prospectus and
the US Prospectus supplement, in each case as soon as available and in
such quantities as the dealers may request; and
5.6 Qualification of the notes: it will take such actions as the dealers may
reasonably request to qualify the notes for offering and sale under the
securities laws of such jurisdictions as the issuer, the dealers and the
transferors may agree, and it will comply with such laws so as to permit
the continuance of sales in such jurisdictions for as long as may be
necessary to complete the distribution of the notes; provided that, in
connection therewith, none of the issuer, the loan note issuer or the
receivables trustee will be required to qualify as a foreign corporation
or dealer in securities or to file a general consent to service of process
in any jurisdiction.
6. UNDERTAKINGS BY THE ISSUER
The Issuer undertakes to the Dealers as follows:
6.1 NOn-satisfaction of conditions precedent: if, at any time after entering
into a relevant agreement under clause 10 (issuing notes) and before the
issue of the relevant notes, the issuer becomes aware that any of the
conditions specified in clause 11.2 (conditions precedent to any issue of
notes) will not be satisfied in relation to that issue, the issuer shall
forthwith notify the relevant dealer(s) to this effect giving full details
thereof;
6.2 Other information: without prejudice to the generality of the foregoing,
the issuer shall from time to time promptly furnish to each dealer such
information relating to the issuer as such dealer may reasonably request;
6.3 Updating of the US Prospectus and the base prospectus: the issuer shall
update or amend the US Prospectus and the base prospectus (following
consultation with the arranger who will consult with the dealers) by, in
the case of the US Prospectus, the preparation and filing with the sec of
an updated prospectus, or such current or periodic reports under the
exchange act as shall be necessary to update the information contained in
the most recently filed US Prospectus, or, as applicable, by the
publication of a supplement thereto or a new base prospectus or, as the
case may be, a drawdown prospectus or a supplement thereto in a form
approved by the dealers:
6.3.1 Annual update: on or before each anniversary of the date of the Base
Prospectus;
6.3.2 Material change: in the event of a significant new factor, material
mistake or inaccuracy relating to the information incidental to the
US Prospectus or the Base Prospectus which is capable of affecting
the assessment of the Notes to be issued under the Programme or the
issue of any Notes;
6.3.3 Amendment: if the terms of the Programme are amended in a manner
which would make the US Prospectus or the Base Prospectus inaccurate
or materially misleading; and
6.3.4 Change in law or regulation: in the event of a change in the laws or
regulations of the United States of America or the United Kingdom
which would make the US Prospectus or the Base Prospectus contain an
untrue statement of a material fact or omit to state a material
fact, except to the extent that such change can be made in the
Prospectus Supplement/Final Terms or, as the case may be, a Drawdown
Prospectus;
6.4 No amendment without consent: not to amend or supplement the US Prospectus
or the final offering document without prior written consent of the
dealers, which consent will not be unreasonably withheld or delayed;
6.5 Distribution of offering material: not to distribute prior to the
completion of the placement of the relevant series of notes any offering
material in connection with the offer and sale of such series other than
the US Prospectus or the final offering document;
6.6 Notice of material change: to advise the dealers promptly of the
occurrence of any event prior to the completion of the placement of the
relevant series of notes that could require the making of any change to
the disclosure package or the US Prospectus or the final offering document
then being used to offer such series so that such disclosure package or us
prospectus or final offering document would not include an untrue
statement of material fact or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances under which
they are made, not misleading, and, during such time, to prepare and
furnish to the dealers reasonably promptly after their request such
amendments or supplements to such disclosure package or US Prospectus or
final offering document as may be necessary to reflect any such change;
6.7 Incorporation, supplements and amendments: upon the publication of a
revision, supplement or amendment to the US Prospectus or the base
prospectus, the issuer shall promptly supply to each dealer and the paying
agents such number of copies of such revision, supplement or amendment as
each dealer or the paying agents (as the case may be) may reasonably
request. until a dealer receives such revision, supplement or amendment,
the expression "US Prospectus" shall, in relation to such dealer, mean the
US Prospectus prior to the receipt by such dealer of such revision,
supplement or amendment and/or, as applicable, the expression "base
prospectus" shall, in relation to such dealer, mean the base prospectus
prior to the receipt by such dealer of such revision, supplement or
amendment;
6.8 Listing: in respect of any issue of notes to be listed, it is agreed
between the issuer and the mandated dealer to apply for such notes to be
admitted to listing, trading and/or quotation by one or more stock
exchanges, the issuer undertakes to use its reasonable endeavours to
obtain and maintain the admission to listing, trading and/or quotation of
such notes by the relevant stock exchange until none of the notes is
outstanding; provided, however, that:
6.8.1 if it is impracticable or unduly burdensome to maintain such
admission to listing, trading and/or quotation, the Issuer shall use
all reasonable endeavours to obtain and maintain as aforesaid an
admission to listing, trading and/or quotation for the Notes on such
other listing authorities, stock exchanges and/or quotation systems
as it may (with the approval of the Mandated Dealer) decide. For the
avoidance of doubt, where the Issuer has obtained the admission of
Notes to trading on a regulated market in the European Economic
Area, the undertaking extends to maintaining that admission or, if
this is not possible, to obtaining admission to trading of the
relevant Notes on another European Economic Area regulated market;
or
6.8.2 (without limiting the generality of Clause (a)) if, as a result of
the adoption of the Transparency Directive or any legislation
implementing the Transparency
Directive, the Issuer could be required to publish financial
information either more regularly than it otherwise would be
required to or according to accounting principles which are
materially different from the accounting principles which it
would otherwise use to prepare its published financial
information, the Issuer may as an alternative procure the
admission to listing, trading and/or quotation for the Notes by
such other Stock Exchange outside the European Union as it may
(with the approval of the Dealers, with such approval not to be
unreasonably withheld) decide, and in either case the Issuer
shall:
(a) use all reasonable endeavours to maintain any such alternative
admission; and
(b) be responsible for any fees incurred in connection with seeking
and maintaining any such alternative admission;
6.9 Amendment of programme documents: the issuer undertakes that it will not,
except with the consent of the dealers, terminate the agency agreement or
the trust deed (and trust deed supplement, as applicable) or effect or
permit to become effective any amendment to any such agreement or deed
which, in the case of an amendment, would or might adversely affect the
interests of any holder of notes issued before the date of such amendment,
other than in relation to registration of the programme with the
securities and exchange commission;
6.10 Change of Note Trustee or Paying Agents: the issuer undertakes that it
will not, except with the consent of the arranger, appoint a different
note trustee under the trust deed or paying agent(s) under the agency
agreement and that it will promptly notify each of the dealers of any
change in the note trustee under the trust deed or paying agent(s) under
the agency agreement;
6.11 Authorised representative: the issuer will notify the dealers promptly in
writing if any of the persons named in the list referred to in paragraph 3
of schedule 2 (initial conditions precedent) ceases to be authorised to
take action on behalf of the issuer or if any additional person becomes so
authorised together, in the case of an additional authorised person, with
evidence satisfactory to the dealers that such person has been so
authorised;
6.12 Legal opinions: the issuer will, in each of the circumstances described in
clause (a) (annual update) to clause (d) (by agreement) below, procure the
delivery to the dealers (or the relevant dealer(s), as the case may be) of
legal opinions (either from legal counsel which originally provided such
legal opinions or from such legal counsel in each of the required
jurisdictions as may be approved by the dealers or, as the case may be,
the mandated dealer in respect of the relevant agreement in question)
addressed to the dealers (or the relevant dealer(s), as the case may be)
the issuer, the note trustee, the receivables trustee, the loan note
issuer no.1 and HSBC in such form and with such content as the dealers (or
the relevant dealer(s), as the case may be) may reasonably require. in the
case of clause (a) (annual update) and clause (b) (material change) below,
such opinion or opinions shall be supplied at the expense of the issuer
and, in the case of clause (c) (syndicated issues) and clause (d) (by
agreement) below, the expense for the supply of such opinion or opinions
shall be as
Agreed between the issuer and the relevant dealer(s). such opinion or
opinions shall be delivered:
6.12.1 Annual update: before the first issue of Notes occurring after each
anniversary of the date of this Agreement;
6.12.2 Material change: if reasonably requested by any Dealer in relation
to a material change or proposed material change to the Base
Prospectus, this Agreement, the Agency Agreement or the Trust Deed
(or Trust Deed Supplement, as applicable) or any change or proposed
change in applicable law or regulation, at such date as may be
specified by such Dealer;
6.12.3 Syndicated issues: at the time of issue of any Notes which are
syndicated amongst a group of institutions, if so requested by the
Relevant Dealer(s); and
6.12.4 By agreement: on such other occasions a Dealer and the Issuer may
agree;
6.13 Auditors' comfort letters: the issuer will, in each of the circumstances
described in clause 6.13.1 (annual update), clause (b) (material change),
clause (c) (syndicated issues), and clause (d) (by agreement) below,
procure the delivery to the dealers (or the relevant dealer(s), as the
case may be) of a comfort letter or comfort letters from independent
auditors addressed to the relevant dealer(s), the issuer and HSBC, in the
customary form, with such modifications as the dealers (or the relevant
dealer(s), as the case may be) may reasonably request provided, however,
that no such letter or letters will be delivered in connection with the
publication or issue of the audited annual financial statements of the
issuer or where no financial statements or accountants reports are
included in the disclosure package. in the case of clause (a) (annual
update) and clause (b) (material change) below, such letter or letters
shall be provided at the expense of the issuer and, in the case of clause
(c) (syndicated issues) and clause (d) (by agreement) below, the expense
for the delivery of such letter or letters shall be as agreed between the
issuer and the relevant dealer(s). such letter or letters shall be
delivered:
6.13.1 Annual update: before the first issue of Notes occurring after each
anniversary of the date of this Agreement;
6.13.2 Material change: at any time that the Base Prospectus shall be
amended or updated (except by means of information incorporated by
reference) where such amendment or updating concerns or contains
financial information relating to the Issuer;
6.13.3 Syndicated issues: at the time of issue of any Notes which are
syndicated amongst a group of institutions, if so requested by the
Relevant Dealer(s); and
6.13.4 By agreement: on such other occasions as a Dealer and the Issuer
may agree;
6.14 Information on noteholders' meetings: the issuer will, at the same time as
it is despatched, furnish the dealers with a copy of every notice of a
meeting of the holders of any one or more class or sub-class of notes and
which is despatched at the instigation of the issuer and will notify the
dealers immediately upon its becoming
Aware that a meeting of the holders of any one or more class or sub-class
of notes has been convened by holders of such notes; and
6.15 No deposit-taking: in respect of any notes having a maturity of less than
one year, the issuer will issue such notes only if the following
conditions apply (or the notes can otherwise be issued without
contravention of section 19 of the fsma):
6.15.1 Selling restrictions: each Relevant Dealer represents, warrants and
agrees in the terms set out in sub-clause 3.1 of Schedule 1
(Selling Restrictions); and
6.15.2 Minimum denomination: the redemption value of each such Note is not
less than (euro)50,000 (or an amount of equivalent value
denominated wholly or partly in a currency other than euro, or as
otherwise specified in the relevant Prospectus Supplement/Final
Terms), and no part of any Note may be transferred unless the
redemption value of that part is not less than (euro)50,000 (or
such an equivalent amount).
7. REPRESENTATIONS AND WARRANTIES BY THE ISSUER, HSBC, LOAN NOTE ISSUER NO.1
AND THE RECEIVABLES TRUSTEE
7.1 In order to induce the dealers to subscribe and pay for the notes, the
issuer represents and warrants to each dealer that:
7.1.1 it is duly incorporated and validly existing under the laws of
England and Wales with full corporate power, authority and legal
right to conduct its business as described in the US Prospectus, the
Base Prospectus and each Preliminary Prospectus Supplement/Final
Terms and Prospectus Supplement/Final Terms (or Preliminary Drawdown
Prospectus and Drawdown Prospectus, as the case may be) and has full
power and capacity to create and issue the Notes, to execute and
deliver the Documents and the Relevant Documents to which it is
expressed to be a party and to undertake and perform the obligations
expressed to be assumed by it herein and therein, and it has taken
all necessary action to approve and to authorise the same;
7.1.2 it has not engaged in any activities since its incorporation (other
than those incidental to its registration under relevant English
legislation, as amended, the matters referred to or contemplated in
the US Prospectus, the Base Prospectus and each Prospectus
Supplement/Final Terms (or Drawdown Prospectus, as the case may be),
the authorisation of the issue of the Notes and the authorisation of
the entry into and performance of its obligations under the
Documents and the Relevant Documents to which it is expressed to be
a party and any other documents, certificates or agreements
ancillary or supplemental thereto or contemplated thereby) and has
neither paid any dividends nor made any distributions since its
incorporation and has no subsidiaries;
7.1.3 the creation and issue of the Notes, the execution and delivery of
the Documents and the Relevant Documents to which it is expressed to
be a party and the undertaking and performance by the Issuer of the
obligations expressed to be assumed by it herein and therein do not
and will not conflict with, result in a breach or infringement of
the terms or provisions of, or
constitute a material default under the laws of England and Wales,
the Memorandum and Articles of Association of the Issuer and do not
and will not infringe the terms of, or constitute a material default
under, any trust deed, agreement or other instrument or obligation
to which the Issuer is a party or by which the Issuer or any part of
its properties, undertakings, assets or revenues is bound, where
such conflict, breach, infringement or default might have a material
adverse effect in the context of the issue of the Notes;
7.1.4 this Agreement constitutes, and upon due execution and delivery on
behalf of the Issuer and (in the case of Notes) due authentication
of the relevant Note Certificates on behalf of the Registrar, the
Documents and the Relevant Documents to which it is expressed to be
a party and the Notes will constitute, legal and valid obligations
binding on it and enforceable against it in accordance with their
terms, except:
(a) as such enforcement may be limited by applicable bankruptcy,
insolvency, moratorium, reorganisation or other similar laws
affecting the enforcement of the rights of creditors
generally;
(b) as such enforceability may be limited by the effect of general
principles of equity;
(c) obligations relating to stamp duties may be void by virtue of
Section 117 of the Stamp ▇▇▇ ▇▇▇▇; and
(d) subject to such other exemptions and qualifications contained
in the legal opinions referred to in Clause 11.2(k) (Legal
opinions and comfort letters, etc);
7.1.5 it is able to pay its debts as they fall due within the meaning of
Section 123 of the Insolvency ▇▇▇ ▇▇▇▇ and will not become unable to
do so in consequence of the execution by it of the Documents and the
Relevant Documents to which it is expressed to be a party and the
performance by it of the transactions envisaged hereby and thereby
and it has not taken any corporate action, nor have any other steps
been taken or legal proceedings been started or, to the best of its
knowledge and belief, having made all reasonable enquiries,
threatened against it, for its winding-up, dissolution, arrangement,
reconstruction or reorganisation or for the appointment of a
liquidator, receiver, manager, administrator, administrative
receiver or similar officer of it or of any of its assets or
revenues;
7.1.6 the Notes will constitute general, direct, secured (pursuant to the
Trust Deed and any relevant Trust Deed Supplement) and unconditional
obligations of the Issuer which rank amongst themselves in the
manner set out in the US Prospectus and the Base Prospectus as
updated by the most recent Prospectus Supplement/Final Terms (or
Drawdown Prospectus, as the case may be) prepared by the Issuer;
7.1.7 the Base Prospectus and each Prospectus Supplement/Final Terms (or
Drawdown Prospectus, as the case may be) comply with the listing
rules made under Part VI of FSMA (the "LISTING RULES");
7.1.8 a registration statement on Form S-3 (No. 333-136826), including a
prospectus and such amendments thereto made on or prior to the
date hereof, relating to delayed offerings and sales of the Notes
pursuant to Rule 415 under the Securities Act, has been filed with
the SEC and all amendments to such registration statement
heretofore filed have been, and any such amendments that may
hereafter be filed will be, delivered to the Dealers. As filed,
the registration statement is, and any prospectus or prospectus
supplement to be filed pursuant to Rule 424(b) under the
Securities Act will, except to the extent that the Dealers may
agree in writing to a modification, be substantially in the form
furnished to the Dealers prior to the Execution Time or, to the
extent not completed at the Execution Time, will contain only such
specific additional information and other changes (beyond those
contained in the latest US Prospectus which has been previously
furnished to the Dealers) as the Dealers have been advised, prior
to the Execution Time, will be included or made therein;
7.1.9 on each Effective Date and on the date of this Agreement and any
Relevant Agreement, the Registration Statement did or will, and
when first filed and on each Issue Date the US Prospectus did or
will, include all information required to be included therein by,
and otherwise comply in all material respects with the
requirements of, the Securities Act and the rules and regulations
of the SEC thereunder;
7.1.10 on each Effective Date, the Registration Statement did not or will
not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary
to make the statements therein not misleading, PROVIDED that no
representation is hereby made with respect to information
contained in, or omitted from, the Registration Statement in
reliance upon and in conformity with information furnished in
writing by any Dealer (in such capacity) specifically for use in
connection with the preparation of the Registration Statement (or
any amendment thereof or supplement thereto);
7.1.11 on each Effective Date the US Prospectus (if not filed pursuant to
Rule 424(b) did not or will not, and on the date of filing and on
each Issue Date the US Prospectus (if filed pursuant to Rule
424(b)) will not, and at the Applicable Time and at the Issue Date
the Disclosure Package did not and will not, include any untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading,
PROVIDED, that no representation is hereby made with respect to
information contained in, or omitted from, the US Prospectus or
the Disclosure Package (as applicable) in reliance upon and in
conformity with information furnished in writing by any
Dealer (in such capacity) specifically for use in connection with
the preparation of the US Prospectus (or any amendment or
supplement thereto) or the Disclosure Package (as applicable);
7.1.12 as of the Issue Date, the representations and warranties of the
Issuer in this Agreement and the Documents to which it is a party
are true and correct;
7.1.13 all approvals, authorisations, consents and licences required by
the Issuer for or in connection with the creation and issue of the
Notes, the execution and delivery of the Documents and the
Relevant Documents to which it is expressed to be a party, the
performance by the Issuer of the obligations expressed to be
undertaken by it herein and therein and the distribution of the
Base Prospectus and each Preliminary Prospectus Supplement/Final
Terms and Prospectus Supplement/Final Terms (or Preliminary
Drawdown Prospectus and Drawdown Prospectus, as the case may be)
in accordance with the provisions set out in Schedule 1 (Selling
Restrictions) have been obtained and are, and will on each Issue
Date be, in full force and effect;
7.1.14 as at each Issue Date all payments of principal and interest on
the Notes (including interest accruing after a payment default) by
the Issuer in respect of any Notes, can be made without
withholding or deduction for, or on account of, any present tax,
assessment or other governmental charge of whatever nature imposed
or levied by or on behalf of the United Kingdom or any other
jurisdiction (a) in which the Issuer is incorporated, organised,
managed and controlled or considered to have its seat, (b) where
an office of the Issuer through which it is acting in connection
with the Notes is located, or (c) from or through which the
payment of principal or interest is made or any political
sub-division or taxing authority in or of any such jurisdiction
thereof or therein having power to tax;
7.1.15
(a) save as described in Clause (o)(ii) as of the relevant
Applicable Time, the relevant Disclosure Package did not, and
both as of the date hereof and on the Closing Date, the
relevant Final Offering Document does not include and will not
include, any untrue statement of a material fact, or omit or
will omit to state any material fact necessary in order to
make the statements therein, in light of the circumstances
under which they are made, not misleading, provided, that no
representation is made with respect to information contained
in, or omitted from, the relevant Disclosure Package in
reliance upon, and in conformity with, information furnished
in writing by any relevant Dealer (in such capacity)
specifically for use in connection with the preparation of the
relevant Disclosure Package;
(b) in the case of any Notes which are the subject of a Drawdown
Prospectus, as of the relevant Applicable Time, the relevant
Preliminary Drawdown Prospectus did not, and both as of the
date hereof and on the
Closing Date, the relevant Drawdown Prospectus does not
include and will not include, any untrue statement of a
material fact, or omit or will omit to state any material fact
necessary in order to make the statements therein, in light of
the circumstances under which they are made, not misleading,
provided, that no representation is made with respect to
information contained in, or omitted from, the relevant
Preliminary Drawdown Prospectus in reliance upon, and in
conformity with, information furnished in writing by any
relevant Dealer (in such capacity) specifically for use in
connection with the preparation of the relevant Preliminary
Drawdown Prospectus;
7.1.16 the Base Prospectus as supplemented by each Preliminary Prospectus
Supplement/Final Terms and Prospectus Supplement/Final Terms (or
Preliminary Drawdown Prospectus and Drawdown Prospectus, as the
case may be) contain all such information as is required by
Section 80 of the FSMA;
7.1.17 there are no litigation, arbitration or administration
proceedings, actual or, to the best of its knowledge, pending or
threatened, at the date hereof against or affecting the Issuer or
any of its assets or revenues which are or might be material,
individually or in aggregate, in the context of the issue and
offering of the Notes;
7.1.18 since the date of its incorporation, there has been no adverse
change, or any development likely to involve an adverse change, in
the condition (financial or otherwise) or general affairs of the
Issuer which would have a material adverse effect on the issue and
offering of the Notes or its ability to perform its obligations
under the Documents or the Relevant Documents to which it is
expressed to be a party;
7.1.19 no event has occurred or circumstances arisen which is continuing
and which is or (with the passage of time, the giving of notice or
the making of any determination of materiality) might become an
Event of Default;
7.1.20 under the laws of England in force as at the date of making this
representation, it is not necessary that this Agreement be filed,
recorded or enrolled with any court or other authority in England
or that any United Kingdom stamp, registration or similar tax be
paid on or in relation to this Agreement.
7.2 In order to induce the dealers to subscribe for the notes, HSBC represents
and warrants to each dealer that:
7.2.1 it is duly incorporated and validly existing under the laws of
England and Wales with full corporate power, authority and legal
right to conduct its business as presently conducted and has full
power and capacity to execute and deliver this Agreement, the
Documents and the Relevant Documents to which it is expressed to be
a party and to undertake and perform the
obligations expressed to be assumed by it herein and therein, and it
has taken all necessary action to approve and to authorise the same;
7.2.2 it is not an "ineligible issuer" (as such term is defined in Rule
405 under the Securities Act without giving effect to clause (2) of
such definition);
7.2.3 it is able to pay its debts as they fall due within the meaning of
Section 123 of the Insolvency ▇▇▇ ▇▇▇▇ and will not become unable to
do so in consequence of the execution by it of this Agreement, the
Documents and the Relevant Documents to which it is expressed to be
a party and the performance by it of the transactions envisaged
hereby and thereby;
7.2.4 this Agreement, the Documents and Relevant Documents to which it is
expressed to be a party constitute or will, upon due execution and
delivery on behalf of HSBC, constitute, legal and valid obligations
binding on it and enforceable against it in accordance with their
terms, except;
(a) as such enforcement may be limited by applicable bankruptcy,
insolvency, moratorium, reorganisation or other similar laws
affecting the enforcement of the rights of creditors
generally;
(b) as such enforceability may be limited by the effect of general
principles of equity;
(c) obligations relating to stamp duties may be void by virtue of
Section 117 of the Stamp ▇▇▇ ▇▇▇▇; and
(d) subject to such other exemptions and qualifications contained
in the legal opinions referred to in Clause 11.2(k) (Legal
opinions and comfort letters, etc);
7.2.5 a registration statement on Form S-3 (No. 333-136826), including a
prospectus and such amendments thereto made on or prior to the date
hereof, relating to delayed offerings and sales of the Notes
pursuant to Rule 415 under the Securities Act, has been filed with
the SEC and all amendments to such registration statement heretofore
filed have been, and any such amendments that may hereafter be filed
will be, delivered to the Dealers. As filed, the registration
statement is, and any prospectus or prospectus supplement to be
filed pursuant to Rule 424(b) under the Securities Act will, except
to the extent that the Dealers may agree in writing to a
modification, be substantially in the form furnished to the Dealers
prior to the Execution Time or, to the extent not completed at the
Execution Time, will contain only such specific additional
information and other changes (beyond those contained in the latest
US Prospectus which has been previously furnished to the Dealers) as
the Dealers have been advised, prior to the Execution Time, will be
included or made therein;
7.2.6 on each Effective Date and on the date of this Agreement and any
Relevant Agreement, the Registration Statement did or will, and when
first filed and on
each Issue Date the US Prospectus did or will, include all
information required to be included therein by, and otherwise comply
in all material respects with the requirements of, the Securities
Act and the rules and regulations of the SEC thereunder;
7.2.7 on each Effective Date, the Registration Statement did not or will
not contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make
the statements therein not misleading, PROVIDED that no
representation is hereby made with respect to information contained
in, or omitted from, the Registration Statement in reliance upon and
in conformity with information furnished in writing by any Dealer
(in such capacity) specifically for use in connection with the
preparation of the Registration Statement (or any amendment thereof
or supplement thereto);
7.2.8 on each Effective Date the US Prospectus (if not filed pursuant to
Rule 424(b) did not or will not, and on the date of filing and on
each Issue Date the US Prospectus (if filed pursuant to Rule 424(b))
will not, and at the Applicable Time and at the Issue Date the
Disclosure Package did not and will not, include any untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, PROVIDED,
that no representation is hereby made with respect to information
contained in, or omitted from, the US Prospectus or the Disclosure
Package (as applicable) in reliance upon and in conformity with
information furnished in writing by any Dealer (in such capacity)
specifically for use in connection with the preparation of the US
Prospectus (or any amendment or supplement thereto) or the
Disclosure Package (as applicable);
7.2.9 as of the Issue Date, the representations and warranties of HSBC in
this Agreement and the Documents to which it is a party are true and
correct;
7.2.10 the execution and delivery of this Agreement, the Documents and
the Relevant Documents to which it is expressed to be a party and
the undertaking and performance by HSBC of the obligations
expressed to be assumed by it herein and therein do not and will
not conflict with, result in a breach or infringement of the terms
or provisions of, or constitute a default under the laws of
England and Wales, the Memorandum and Articles of Association of
HSBC and do not and will not result in a material breach of or
constitute a material default under, any trust deed, agreement or
other instrument or obligation to which HSBC is a party or by
which HSBC or any part of its properties, undertakings or assets
in the UK is bound, where such conflict, breach, infringement or
default might have a material adverse effect in the context of its
ability to perform its obligations under this Agreement, the
Documents and the Relevant Documents to which it is expressed to
be a party;
7.2.11 there are no litigation or arbitration proceedings, actual or, to
the best of its knowledge, pending or threatened, at the date
hereof against or affecting HSBC or any of its assets or revenues
which are or might be material, individually or in aggregate, in
the context of its ability to perform its obligations under this
Agreement, the Documents and the Relevant Documents to which it is
expressed to be a party or in the context of the issue and
offering of the Notes;
7.2.12 all approvals, authorisations, consents, orders or other actions
of any person or of any governmental or regulatory body or
official required in connection with the performance of its
banking business and the execution and delivery of this Agreement
and each Document to which it is expressed to be a party, the
performance of the transactions contemplated by this Agreement and
each Document to which it is expressed to be a party and the
fulfilment of the terms thereof have been obtained and remain, and
will remain on each Issue Date, in force in all material respects;
7.2.13
(a) save as described in Clause 7.2.13(b), as of the relevant
Applicable Time, the relevant Disclosure Package did not,
and both as of the date hereof and on the Closing Date, the
relevant Final Offering Document does not include and will
not include, any untrue statement of a material fact, or
omit or will omit to state any material fact necessary in
order to make the statements therein, in light of the
circumstances under which they are made, not misleading,
provided, that no representation is made with respect to
information contained in, or omitted from, the relevant
Disclosure Package in reliance upon, and in conformity
with, information furnished in writing by any relevant
Dealer (in such capacity) specifically for use in
connection with the preparation of the relevant Disclosure
Package;
(b) in the case of any Notes which are the subject of a
Drawdown Prospectus, as of the relevant Applicable Time,
the relevant Preliminary Drawdown Prospectus did not, and
both as of the date hereof and on the Closing Date, the
relevant Drawdown Prospectus does not include and will not
include, any untrue statement of a material fact, or omit
or will omit to state any material fact necessary in order
to make the statements therein, in light of the
circumstances under which they are made, not misleading,
provided, that no representation is made with respect to
information contained in, or omitted from, the relevant
Preliminary Drawdown Prospectus in reliance upon, and in
conformity with, information furnished in writing by any
relevant Dealer (in such capacity) specifically for use in
connection with the preparation of the relevant Preliminary
Drawdown Prospectus;
7.2.14 HSBC is a bank for the purposes of Section 840A of the Income and
Corporation Taxes ▇▇▇ ▇▇▇▇.
7.3 In order to induce the dealers to subscribe for the notes, the loan note
issuer no.1 represents and warrants to each dealer thAT:
7.3.1 it is duly incorporated and validly existing under the laws of
Jersey with full corporate power, authority and legal right to
conduct its business as described in the US Prospectus, the Base
Prospectus and each Prospectus Supplement/Final Terms (or Drawdown
Prospectus, as the case may be) and has full power and capacity to
execute and deliver this Agreement and the Documents and Relevant
Documents to which it is expressed to be a party and to undertake
and perform the obligations expressed to be assumed by it herein and
therein, and it has taken all necessary action to approve and to
authorise the same;
7.3.2 it is not an "ineligible issuer" (as such term is defined in Rule
405 under the Securities Act without giving effect to clause (2) of
such definition);
7.3.3 it has not engaged in any activities since its incorporation (other
than those incidental to its registration under relevant Jersey
legislation, as amended, becoming an Investor Beneficiary of the
Receivables Trust, the matters referred to or contemplated in the
Base Prospectus and each Prospectus Supplement/Final Terms (or
Drawdown Prospectus, as the case may be), the authorisation of the
entry into and performance of its obligations under this Agreement
and the Documents and Relevant Documents to which it is expressed to
be a party and any other documents, certificates or agreements
ancillary or supplemental thereto or contemplated thereby) and has
neither paid any dividends nor made any distributions since its
incorporation and has no subsidiaries;
7.3.4 a registration statement on Form S-3 (No. 333-136826), including a
prospectus and such amendments thereto made on or prior to the date
hereof, relating to delayed offerings and sales of the Notes
pursuant to Rule 415 under the Securities Act, has been filed with
the SEC and all amendments to such registration statement heretofore
filed have been, and any such amendments that may hereafter be filed
will be, delivered to the Dealers. As filed, the registration
statement is, and any prospectus or prospectus supplement to be
filed pursuant to Rule 424(b) under the Securities Act will, except
to the extent that the Dealers may agree in writing to a
modification, be substantially in the form furnished to the Dealers
prior to the Execution Time or, to the extent not completed at the
Execution Time, will contain only such specific additional
information and other changes (beyond those contained in the latest
US Prospectus which has been previously furnished to the Dealers) as
the Dealers have been advised, prior to the Execution Time, will be
included or made therein;
7.3.5 on each Effective Date and on the date of this Agreement and any
Relevant Agreement, the Registration Statement did or will, and when
first filed and on each Issue Date the US Prospectus did or will,
include all information required to be included therein by, and
otherwise comply in all material
respects with the requirements of, the Securities Act and the rules
and regulations of the SEC thereunder;
7.3.6 on each Effective Date, the Registration Statement did not or will
not contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make
the statements therein not misleading, PROVIDED that no
representation is hereby made with respect to information contained
in, or omitted from, the Registration Statement in reliance upon and
in conformity with information furnished in writing by any Dealer
(in such capacity) specifically for use in connection with the
preparation of the Registration Statement (or any amendment thereof
or supplement thereto);
7.3.7 on each Effective Date the US Prospectus (if not filed pursuant to
Rule 424(b) did not or will not, and on the date of filing and on
each Issue Date the US Prospectus (if filed pursuant to Rule 424(b))
will not, and at the Applicable Time and at the Issue Date the
Disclosure Package did not and will not, include any untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, PROVIDED,
that no representation is hereby made with respect to information
contained in, or omitted from, the US Prospectus or the Disclosure
Package (as applicable) in reliance upon and in conformity with
information furnished in writing by any Dealer (in such capacity)
specifically for use in connection with the preparation of the US
Prospectus (or any amendment or supplement thereto) or the
Disclosure Package (as applicable);
7.3.8 as of the Issue Date, the representations and warranties of the Loan
Note Issuer No. 1 in this Agreement and the Documents to which it is
a party are true and correct;
7.3.9 the Relevant Documents to which it is expressed to be a party and
the undertaking and performance by it of the obligations expressed
to be assumed by it herein and therein do not and will not conflict
with, result in a breach or infringement of the terms or provisions
of, or constitute a default under the laws of Jersey, its Memorandum
and Articles of Association and do not and will not infringe the
terms of, or constitute a default under, any trust deed, agreement
or other instrument or obligation to which it is a party or by which
it or any part of its properties, undertakings or assets in Jersey
is bound, where such conflict, breach, infringement or default might
have a material adverse effect in the context of its ability to
perform its obligations under this Agreement and the Documents and
Relevant Documents to which it is expressed to be a party;
7.3.10 this Agreement and the Documents and any Relevant Documents to
which it is expressed to be a party constitute and, upon due
execution and delivery on its
behalf, will constitute, legal and valid obligations binding on it
and enforceable against it in accordance with their terms, except:
(a) as such enforcement may be limited by applicable bankruptcy,
insolvency, moratorium, reorganisation or other similar laws
affecting the enforcement of the rights of creditors
generally;
(b) as such enforceability may be limited by the effect of general
principles of equity;
(c) obligations relating to stamp duties may be void by virtue of
Section 117 of the Stamp ▇▇▇ ▇▇▇▇; and
(d) subject to such other exemptions and qualifications contained
in the legal opinions referred to in Clause 11.2(k) (Legal
opinions and comfort letters, etc);
7.3.11 it is able to pay its debts as they fall due (having regard to the
limited recourse provisions contained in the documents to which it
is a party) and will not become unable to do so in consequence of
the execution by it of this Agreement and the Documents and any
Relevant Documents to which it is expressed to be a party and the
performance by it of the transactions envisaged hereby and thereby
and it has not taken any corporate action, nor have any other
steps been taken or legal proceedings been started or, to the best
of its knowledge, threatened against it, for its winding-up,
dissolution, arrangement, reconstruction or reorganisation or for
the appointment of a liquidator, receiver, administrator,
administrative receiver, manager or similar officer of it or of
any of its assets or revenues;
7.3.12 its obligations under this Agreement and the Documents and any
Relevant Documents to which it is expressed to be a party
constitute and, upon due execution and delivery on its behalf,
will constitute general, direct, unsecured and unconditional
obligations of it which rank amongst themselves in the manner set
out in the Security Trust Deed and each Loan Note Supplement;
7.3.13 all approvals, authorisations, consents and licences required by
it for or in connection with the execution and delivery of this
Agreement and the Documents and any Relevant Documents to which it
is expressed to be a party, the performance by it of the
obligations expressed to be undertaken by it herein and therein
have been obtained and are, and will on each Issue Date be, in
full force and effect;
7.3.14 there are no litigation or arbitration proceedings, actual or, to
the best of its knowledge, pending or threatened, at the date
hereof against or affecting it or any of its assets or revenues
which are or might be material, individually or in aggregate, in
the context of its ability to perform its obligations under this
Agreement and the Documents and any Relevant Documents to which it
is expressed to be a party;
7.3.15 since the date of its incorporation, there has been no adverse
change, or any development reasonably likely to involve an adverse
change, in the condition (financial or otherwise) or general
affairs of it that is material in the context of its ability to
perform its obligations under this Agreement and the Documents and
any Relevant Documents to which it is expressed to be a party; and
7.3.16 as of the relevant Applicable Time, the relevant Disclosure
Package did not, and both as of the date hereof and on the Closing
Date, the relevant Final Offering Document does not include and
will not include, any untrue statement of a material fact, or omit
or will omit to state any material fact in relation to the Loan
Note Issuer No.1 and its business necessary in order to make the
statements therein relating to the Loan Note Issuer No.1, in light
of the circumstances under which they are made, not misleading,
provided, that no representation is made with respect to
information contained in, or omitted from, the relevant Disclosure
Package in reliance upon, and in conformity with, information
furnished in writing by any relevant Dealer (in such capacity)
specifically for use in connection with the preparation of the
relevant Disclosure Package.
7.4 In order to induce the dealers to subscribe for any notes the receivables
trustee represents and warrants to each dealer that:
7.4.1 it is duly incorporated and validly existing under the laws of
Jersey with full corporate power, authority and legal right to
conduct its business as described in the US Prospectus, the Base
Prospectus and each Prospectus Supplement/Final Terms (or Drawdown
Prospectus, as the case may be) and has full power and capacity to
execute and deliver this Agreement and the Documents and Relevant
Documents to which it is expressed to be a party and to undertake
and perform the obligations expressed to be assumed by it herein and
therein, and it has taken all necessary action to approve and to
authorise the same;
7.4.2 it is not an "ineligible issuer" (as such term is defined in Rule
405 under the Securities Act without giving effect to clause (2) of
such definition);
7.4.3 it has not engaged in any activities since its incorporation (other
than those incidental to its registration under relevant Jersey
legislation, as amended, the matters referred to or contemplated in
the Base Prospectus and each Prospectus Supplement/Final Terms (or
Drawdown Prospectus, as the case may be), the authorisation of the
entry into and performance of its obligations under this Agreement
and the Documents and Relevant Documents to which it is expressed to
be a party, any other documents, certificates or agreements
ancillary or supplemental thereto or contemplated thereby) and has
neither paid any dividends nor made any distributions since its
incorporation and has no subsidiaries;
7.4.4 a registration statement on Form S-3 (No. 333-136826), including a
prospectus and such amendments thereto made on or prior to the date
hereof,
relating to delayed offerings and sales of the Notes pursuant to
Rule 415 under the Securities Act, has been filed with the SEC and
all amendments to such registration statement heretofore filed have
been, and any such amendments that may hereafter be filed will be,
delivered to the Dealers. As filed, the registration statement is,
and any prospectus or prospectus supplement to be filed pursuant to
Rule 424(b) under the Securities Act will, except to the extent that
the Dealers may agree in writing to a modification, be substantially
in the form furnished to the Dealers prior to the Execution Time or,
to the extent not completed at the Execution Time, will contain only
such specific additional information and other changes (beyond those
contained in the latest US Prospectus which has been previously
furnished to the Dealers) as the Dealers have been advised, prior to
the Execution Time, will be included or made therein;
7.4.5 on each Effective Date and on the date of this Agreement and any
Relevant Agreement, the Registration Statement did or will, and when
first filed and on each Issue Date the US Prospectus did or will,
include all information required to be included therein by, and
otherwise comply in all material respects with the requirements of,
the Securities Act and the rules and regulations of the SEC
thereunder;
7.4.6 on each Effective Date, the Registration Statement did not or will
not contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make
the statements therein not misleading, PROVIDED that no
representation is hereby made with respect to information contained
in, or omitted from, the Registration Statement in reliance upon and
in conformity with information furnished in writing by any Dealer
(in such capacity) specifically for use in connection with the
preparation of the Registration Statement (or any amendment thereof
or supplement thereto);
7.4.7 on each Effective Date the US Prospectus (if not filed pursuant to
Rule 424(b) did not or will not, and on the date of filing and on
each Issue Date the US Prospectus (if filed pursuant to Rule 424(b))
will not, and at the Applicable Time and at the Issue Date the
Disclosure Package did not and will not, include any untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, PROVIDED,
that no representation is hereby made with respect to information
contained in, or omitted from, the US Prospectus or the Disclosure
Package (as applicable) in reliance upon and in conformity with
information furnished in writing by any Dealer (in such capacity)
specifically for use in connection with the preparation of the US
Prospectus (or any amendment or supplement thereto) or the
Disclosure Package (as applicable);
7.4.8 as of the Issue Date, the representations and warranties of the
Receivables Trustee in this Agreement and the Documents to which
it is a party are true and correct;
7.4.9 the execution and delivery of this Agreement, the Documents and
the Relevant Documents to which it is expressed to be a party and
the undertaking and performance by it of the obligations expressed
to be assumed by it herein and therein do not and will not
conflict with, result in a breach or infringement of the terms or
provisions of, or constitute a default under the laws of Jersey,
its Memorandum and Articles of Association and do not and will not
infringe the terms of, or constitute a default under, any trust
deed, agreement or other instrument or obligation to which it is a
party or by which it or any part of its properties, undertakings,
assets or revenues is bound, where such conflict, breach,
infringement or default might have a material adverse effect in
the context of its ability to perform its obligations under this
Agreement and the Documents and Relevant Documents to which it is
expressed to be a party;
7.4.10 this Agreement and the Documents and any Relevant Documents to
which it is expressed to be a party constitute and, upon due
execution and delivery on its behalf, will constitute, legal and
valid obligations binding on it and enforceable against it in
accordance with their terms, except:
(a) as such enforcement may be limited by applicable
bankruptcy, insolvency, moratorium, reorganisation or other
similar laws affecting the enforcement of the rights of
creditors generally;
(b) as such enforceability may be limited by the effect of
general principles of equity;
(c) obligations relating to stamp duties may be void by virtue
of Section 117 of the Stamp ▇▇▇ ▇▇▇▇; and
(d) subject to such other exemptions and qualifications
contained in the legal opinions referred to in Clause
11.2(k) (Legal opinions and comfort letters, etc);
7.4.11 it is able to pay its debts as they fall due (having regard to the
limited recourse provisions contained in the documents to which it
is a party) and will not become unable to do so in consequence of
the execution by it of this Agreement and the Documents and any
Relevant Documents to which it is expressed to be a party and the
performance by it of the transactions envisaged hereby and thereby
and it has not taken any corporate action, nor have any other
steps been taken or legal proceedings been started or, to the best
of its knowledge, threatened against it, for its winding-up,
dissolution, arrangement, reconstruction or reorganisation or for
the appointment of a liquidator, receiver, administrator,
administrative receiver, manager or similar officer of it or of
any of its assets or revenues;
7.4.12 its obligations under this Agreement and the Documents and any
Relevant Documents to which it is expressed to be a party
constitute and, upon due execution and delivery on its behalf,
will constitute general, direct, unsecured, unconditional and
unsubordinated obligations of it which rank and will at all times
rank pari passu, without preference or priority, amongst
themselves;
7.4.13 all approvals, authorisations, consents and licences required by
it for or in connection with the execution and delivery of this
Agreement and the Documents and any Relevant Documents to which it
is expressed to be a party, the performance by it of the
obligations expressed to be undertaken by it herein and therein
have been obtained and are, and will on each Issue Date be, in
full force and effect;
7.4.14 there are no litigation or arbitration proceedings, actual or, to
the best of its knowledge, pending or threatened, at the date
hereof against or affecting it or any of its assets or revenues
which are or might be material, individually or in aggregate, in
the context of its ability to perform its obligations under this
Agreement and the Documents and any Relevant Documents to which it
is expressed to be a party;
7.4.15 since the date of its incorporation, there has been no adverse
change, or any development reasonably likely to involve an adverse
change, in the condition (financial or otherwise) or general
affairs of it that is material in the context of its ability to
perform its obligations under this Agreement and the Documents and
any Relevant Documents to which it is expressed to be a party; and
7.4.16 as of the relevant Applicable Time, the relevant Disclosure
Package did not, and both as of the date hereof and on the Closing
Date, the relevant Final Offering Document does not include and
will not include, any untrue statement of a material fact, or omit
or will omit to state any material fact in relation to the
Receivables Trustee and its business necessary in order to make
the statements therein relating to the Receivables Trustee, in
light of the circumstances under which they are made, not
misleading, provided, that no representation is made with respect
to information contained in, or omitted from, the relevant
Disclosure Package in reliance upon, and in conformity with,
information furnished in writing by any relevant Dealer (in such
capacity) specifically for use in connection with the preparation
of the relevant Disclosure Package.
7.5 Representations and warranties deemed repeated
Each of the representations and warranties made by the Issuer in Clause
15.1 (excluding the representations and warranties made by the Issuer
relating to the payment of dividends and other distributions in Clause
15.1(b)), by HSBC in Clause 15.2, by Loan Note Issuer No.1 in Clause 6.3
(excluding the representations and warranties made by the Loan Note Issuer
No.1 relating to the payment of dividends and other distributions in
Clause 15.3(b)) and by the Receivables Trustee in Clause 6.4 (excluding
the representations and warranties made by the Receivables Trustee
relating
to the payment of dividends and other distributions in Clause 15.3(b)) and
by the Receivables Trustee in Clause 6.4 (excluding the representations
and warranties made by the Receivables Trustee relating to the payment of
dividends and other distributions in Clause 15.4(b)) shall be deemed to be
repeated on each date on which the US Prospectus or the Base Prospectus is
amended, supplemented, updated and/or replaced, on each date upon which
the Authorised Amount is increased and, in respect of any Notes agreed as
contemplated herein to be issued and subscribed, on the date on which each
Relevant Agreement is made, on each Issue Date and on each intervening
date, in each case, with reference to the facts and circumstances then
subsisting.
8. OBLIGATIONS AS CORPORATE OBLIGATIONS
8.1 No recourse against Shareholders and others
Each of the Dealers shall not have any recourse against nor shall any
personal liability attach to any shareholder, officer, employee, agent,
secretary or director of the Issuer, HSBC, Loan Note Issuer No.1 and the
Receivables Trustee in his capacity as such by any Proceedings or
otherwise, by virtue of any statute or otherwise and any and all personal
liability for breaches by the Issuer, HSBC, the Loan Note Issuer No.1 or
the Receivables Trustee of any such obligations, covenants, or agreements,
either at law or by statute or constitution, of every shareholder,
officer, agent, secretary or director is hereby expressly waived by the
Issuer, HSBC, the Loan Note Issuer No.1 or the Receivables Trustee and
each of the Dealers as a condition of and consideration for the execution
of this Agreement, provided that no such waiver of personal liability of
any shareholder, officer, agent or director of the Issuer, HSBC, the Loan
Note Issuer No.1 or the Receivables Trustee as referred to above shall
apply where any liability or claim under this Agreement arises by reason
of the fraud or wilful misconduct of the relevant shareholder, officer,
agent, secretary or director of the Issuer, HSBC, the Loan Note Issuer
No.1 or the Receivables Trustee.
8.2 No liability for Obligations of Issuer, HSBC, the Loan Note Issuer No.1
and the Receivables Trustee
Each of the Dealers shall not have any liability for the Obligations of
the Issuer, HSBC, Loan Note Issuer No.1 and the Receivables Trustee and
nothing in this Agreement shall constitute the giving of a guarantee or
indemnity or the assumption of a similar obligation by any of the Dealers
in respect of the performance by the Issuer, HSBC, Loan Note Issuer No.1
and the Receivables Trustee of their Obligations under this Agreement.
9. NON-PETITION
9.1 Each of the dealers hereby agrees with the issuer, HSBC, loan note issuer
No.1 and the receivables trustee that:
9.1.1 each shall not (and no person acting on their behalf shall) until
two years after the Final Discharge Date initiate or join any person
in initiating any Insolvency Proceedings or the appointment of an
Insolvency Official in relation to the Issuer, Loan Note Issuer No.1
and the Receivables Trustee other than a Receiver or an
Administrator appointed by the Note Trustee appointed under the
Trust Deed;
9.1.2 other than in relation to the Notes, each shall not have the right
to take or join any person in taking steps against the Issuer, Loan
Note Issuer No.1 and the Receivables Trustee for the purpose of
obtaining payment of any amount due from the Issuer, Loan Note
Issuer No.1 and the Receivables Trustee; and
9.1.3 each shall not be entitled to take or join in the taking of any
corporate action, legal proceedings or other procedure or steps
which would result in the priority of payments in Condition 5
(Status, Security and Priority of Payments) not being complied with.
10. COVENANTS OF THE ISSUER, HSBC, LOAN NOTE ISSUER NO.1 AND THE RECEIVABLES
TRUSTEE
10.1 Each of the issuer, HSBC, loan note issuer no.1 and the receivables
trustee severally covenants and undertakes to the dealers that each will
notify the dealers promptly of any material change affecting the issuer's,
HSBC's, loan note issuer no.1's or the receivables trustee's
representations, warranties, agreements and indemnities herein
respectively at any time prior to payment being made to the issuer on each
issue date and, at the issuer, HSBC's, loan note issuer no.1's or the
receivables trustee's expense, as applicable, will take such steps in
relation to the transactions contemplated hereby as may reasonably be
requested by dealers to remedy and/or publicise the same.
10.2 EAch of the issuer, HSBC, loan note issuer no.1 and the receivables
trustee severally covenants and undertakes to the dealers that each will
not, except as required by law (including, but not limited to, securities
and insurance law and regulations), without the prior approval of the
arranger, on behalf of the dealers (such approval not to be unreasonably
withheld):
10.2.1 make any announcement which would be material in the context of the
issue and offering of the Notes; or
10.2.2 make any announcement in relation to the issue of the Notes unless
the announcement adequately discloses that stabilising action may
take place in relation to the issue of the Notes.
11. INDEMNITY BY THE ISSUER, HSBC, LOAN NOTE ISSUER NO.1 AND THE RECEIVABLES
TRUSTEE
11.1 The issuer undertakes with the dealers that it will indemnify and hold
harmless each dealer and their respective directors, employees and
affiliates (each a "relevant party") from and against any loss which it
may incur or which may be made against any of them, in relation to or in
connection with any breach or alleged breach by the issuer of any of its
representations and warranties hereunder or any failure by the issuer to
perform any of its undertakings and agreements made in this agreement
provided that the issuer shall not be liable to the dealers for any such
loss arising from any statements in the US Prospectus, the base prospectus
or any preliminary prospectus supplement/final terms or prospectus
supplement/final terms (or preliminary drawdown prospectus or drawdown
prospectus, as the case may be) made in reliance on and in conformity with
information furnished in writing by any dealer to the issuer, the loan
note issuer no.1, the receivables trustee or HSBC
expressly for use in the US Prospectus, the base prospectus or any
preliminary prospectus supplement/final terms or prospectus
supplement/final terms (or preliminary drawdown prospectus or drawdown
prospectus, as the case may be) (such information as specifically
identified in the applicable relevant agreement) and will pay to the
relevant dealer on demand an amount equal to such loss which it or any
relevant party may reasonably pay or incur in connection with
investigating, disputing or defending any action or claim as such costs,
charges and expenses are reasonably incurred. this indemnity will be in
addition to any liability which the issuer may otherwise have.
11.2 HSBC undertakes with the dealers that it will indemnify and hold harmless
each dealer and their respective directors, employees and affiliates (each
a "relevant party") from and against any loss which any of them may incur
or which may be made against it, in relation to or in connection with any
breach or alleged breach by HSBC of any of its representations and
warranties hereunder or any failure by HSBC to perform any of its
undertakings and agreements made in this agreement provided that HSBC
shall not be liable to any dealers for any such loss arising from any
statements in the us prospectus, the base prospectus or any preliminary
prospectus supplement/final terms or prospectus supplement/final terms (or
preliminary drawdown prospectus or drawdown prospectus, as the case may
be) made in reliance on and in conformity with information furnished in
writing by each of the relevant dealers to HSBC, the receivables trustee,
the loan note issuer no.1 or the issuer expressly for use in the us
prospectus, the base prospectus or any preliminary prospectus
supplement/final terms or prospectus supplement/final terms (or
preliminary drawdown prospectus or drawdown prospectus, as the case may
be) (such information as specifically identified in the applicable
relevant agreement) and will pay to the relevant dealer on demand an
amount equal to such loss which it or any relevant party may reasonably
pay or incur in connection with investigating, disputing or defending any
action or claim as such costs, charges and expenses are reasonably
incurred. this indemnity will be in addition to any liability which HSBC
may otherwise have.
11.3 Subject always to the provision of clause 9 (non-petition), the loan note
issuer no.1 undertakes with the dealers that it will indemnify and hold
harmless each dealer and their respective directors, employees and
affiliates (each a "relevant party") from and against any loss which any
of them may incur or which may be made against it, in relation to or in
connection with any breach or alleged breach by loan note issuer no.1 of
any of its representations and warranties hereunder or any failure by loan
note issuer no.1 to perform any of its undertakings and agreements made in
this agreement provided that loan note issuer no.1 shall not be liable to
any dealers for any such loss arising from any statements in the us
prospectus, the base prospectus or any preliminary prospectus
supplement/final terms or prospectus supplement/final terms (or
preliminary drawdown prospectus or drawdown prospectus, as the case may
be) made in reliance on and in conformity with information furnished in
writing by each of the relevant dealers to loan note issuer no.1, the
receivables trustee or the issuer expressly for use in the US Prospectus,
the base prospectus or any preliminary prospectus supplement/final terms
or prospectus supplement/final terms (or preliminary drawdown prospectus
or drawdown prospectus, as the case may be) (such information as
specifically identified in the applicable relevant agreement) and will pay
to the relevant dealer on demand
An amount equal to such loss which it or any relevant party may reasonably
pay or incur in connection with investigating, disputing or defending any
action or claim as such costs, charges and expenses are reasonably
incurred. this indemnity will be in addition to any liability which loan
note issuer no.1 may otherwise have.
11.4 Subject always to the provision of clause 9 (non-petition), the
receivables trustee undertakes with the dealers that it will indemnify and
hold harmless each dealer and their respective directors, employees and
affiliates (each a "relevant party") from and against any loss which any
of them may incur or which may be made against it, in relation to or in
connection with any breach or alleged breach by the receivables trustee of
any of its representations and warranties hereunder or any failure by the
receivables trustee to perform any of its undertakings and agreements made
in this agreement provided that the receivables trustee shall not be
liable to any dealer for any such loss arising from any statements in the
US Prospectus, the base prospectus or any preliminary prospectus
supplement/final terms or prospectus supplement/final terms (or
preliminary drawdown prospectus or drawdown prospectus, as the case may
be) made in reliance on and in conformity with information furnished in
writing by any dealer to the issuer, the loan note issuer no.1, the
receivables trustee or HSBC expressly for use in the US Prospectus, the
base prospectus or any preliminary prospectus supplement/final terms or
prospectus supplement/final terms (or preliminary drawdown prospectus or
drawdown prospectus, as the case may be) (such information as specifically
identified in the applicable relevant agreement) and will pay to the
relevant dealer on demand an amount equal to such loss which it or any
relevant party may reasonably pay or incur in connection with
investigating, disputing or defending any action or claim as such costs,
charges and expenses are reasonably incurred. this indemnity will be in
addition to any liability which the receivables trustee may otherwise
have.
11.5 No dealer shall have any duty or obligation, whether fiduciary or as
trustee for any relevant party or otherwise, to recover any such payment
or to account for any other person for any amounts due to it under this
clause 19 (indemnity by the issuer, HSBC, loan note issuer no.1 and the
receivables trustee).
11.6 The issuer, HSBC, loan note issuer no.1, the receivables trustee and the
dealers agree that, in the event that any action is brought against any of
them in relation to any matter under or pursuant to this agreement which
may give rise to a claim under clauses 12.2, 19.1, 19.2, 19.3 or 19.4, as
the case may be, then such person shall, after any officer of the issuer,
HSBC, loan note issuer no.1, the receivables trustee or the dealers (as
the case may be) with responsibility for the transactions contemplated by
this agreement becomes aware of the same, give notice within a reasonable
time to the person or persons who may be liable to indemnify such person
under such clauses (but failure to do so shall not relieve such persons
from liability).
11.7 Conduct of claims
If any claim, demand or action is brought or asserted in respect of which
one or more persons (each, an "INDEMNIFIED PERSON") is entitled to be
indemnified by another person (the "INDEMNIFIER") under this Clause 19
(Indemnity by the Issuer, HSBC, Loan Note Issuer No.1 and the Receivables
Trustee) (each a "CLAIM"), each Indemnified Person shall promptly notify
the Indemnifier (but failure to do so shall not relieve the Indemnifier
from liability) and the Indemnifier, Indemnified Person and any
Related Person agree to consult in good faith as to the conduct of the
defence of the relevant Claim.
11.8 Settlement
The Indemnifier shall not, without the prior written consent of each
Indemnified Person, settle or compromise, or consent to the entry of
judgment with respect to, any pending or threatened Claim (irrespective of
whether any Indemnified Person is an actual or potential defendant in, or
target of, such Claim) unless such settlement, compromise or consent
includes an unconditional release of each Indemnified Person and each of
its Related Parties from all liability arising out of the matters which
are the subject of such Claim. The Indemnifier shall not be liable to pay
any amount under this Clause 19 (Indemnity by the Issuer, HSBC, Loan Note
Issuer No.1 and the Receivables Trustee) to any Indemnified Person where
the relevant Claim has been settled or compromised without its prior
written consent (which shall not be unreasonably withheld).
11.9 Interpretation
The terms "AFFILIATE" and "CONTROLLED" as used in this Clause 19
(Indemnity by the Issuer, HSBC, Loan Note Issuer No.1 and the Receivables
Trustee) have the meanings given to them by the Securities Act and the
regulations thereunder.
12. SELLING RESTRICTIONS
Each of the parties hereto:
12.1 Schedule 1: represents, warrants and undertakes as set out in schedule 1
(selling restrictions);
12.2 Subsequent changes: agrees that, for these purposes, schedule 1 (selling
restrictions) shall be deemed to be modified to the extent (if at all)
that any of the provisions set out in schedule 1 (selling restrictions)
relating to any specific jurisdiction shall, as a result of change(s) in,
or change(s) in official interpretation of, applicable laws and
regulations after the date hereof, no longer be applicable;
12.3 Preliminary prospectus supplement/final terms; prospectus supplement/final
terms; preliminary drawdown prospectus; drawdown prospectus: agrees that
if:
12.3.1 in the case of any Notes which are the subject of a Drawdown
Prospectus, any of the provisions set out in Schedule 1 (Selling
Restrictions) are modified and/or supplemented by provisions of the
relevant Preliminary Drawdown Prospectus and Drawdown Prospectus;
and
12.3.2 in the case of any other Notes, any of the provisions set out in
Schedule 1 (Selling Restrictions) are modified and/or supplemented
by provisions of the relevant Preliminary Prospectus
Supplement/Final Terms and Prospectus Supplement/Final Terms,
then, in respect of the Issuer, the Relevant Dealers and those Notes only,
Schedule 1 (Selling Restrictions) shall further be deemed to be modified
and/or supplemented to the extent described in the relevant Preliminary
Prospectus Supplement/Final Terms
and Prospectus Supplement/Final Terms or, as the case may be, the
Preliminary Drawdown Prospectus and Drawdown Prospectus; and
12.4 General: agrees that the provisions of clause 20.2 (subsequent changes)
and clause 20.3 (preliminary prospectus supplement/final terms; prospectus
supplement/final terms; preliminary drawdown prospectus; drawdown
prospectus) shall be without prejudice to the obligations of the dealers
contained in the paragraph headed "general" in schedule 1 (selling
restrictions).
13. AUTHORITY TO DISTRIBUTE DOCUMENTS
The Issuer hereby authorises each of the Dealers on their behalf to
provide or make available to actual and potential purchasers of Notes:
13.1 Documents: copies of the US Prospectus, the base prospectus, the terms of
any preliminary prospectus supplement/final terms and prospectus
supplement/final terms (or preliminary drawdown prospectus and drawdown
prospectus, as the case may be), each pricing annex and any other
documents entered into in relation to the programme;
13.2 Representations: information and representations wholly consistent with
the US Prospectus, the base prospectus, each preliminary prospectus
supplement/final terms and prospectus supplement/final terms (or
preliminary drawdown prospectus and drawdown prospectus, if applicable),
each pricing annex and any other documents entered into in relation to the
programme; and
13.3 Other information: such other documents and additional information as the
issuer shall supply to the dealers or approve for the dealers to use or
such other information as is in the public domain.
14. STATUS OF THE ARRANGER
Each of the Dealers agrees that the Arranger has only acted in an
administrative capacity to facilitate the establishment and/or maintenance
of the Programme and has no responsibility to it for (a) the adequacy,
accuracy, completeness or reasonableness of any representation, warranty,
undertaking, agreement, statement or information in the US Prospectus, the
Base Prospectus, any Preliminary Prospectus Supplement/Final Terms, any
Prospectus Supplement/Final Terms, any Preliminary Drawdown Prospectus,
any Drawdown Prospectus, this Agreement or any information provided in
connection with the Programme or (b) the nature and suitability to it of
all legal, tax and accounting matters and all documentation in connection
with the Programme or any Notes.
15. FEES AND EXPENSES
15.1 Issuer costs and expenses
The Issuer is responsible for payment of the proper costs, charges and
expenses:
15.1.1 Professional advisers: of the legal, accountancy and other
professional advisers instructed by the Issuer in connection with
the establishment and maintenance of the Programme, the
preparation of the Base Prospectus (and each (if any) Drawdown
Prospectus), the relevant Prospectus Supplement/Final Terms, the
relevant Pricing Annex or the issue and sale of
any Notes or the compliance by the Issuer with its obligations
hereunder or under any Relevant Agreement (including, without
limitation, the provision of legal opinions and comfort letters as
and when required by the terms of this Agreement or any Relevant
Agreement);
15.1.2 Dealer's advisers: of any legal and other professional advisers
instructed by the Dealers in connection with the establishment and
maintenance of the Programme;
15.1.3 Legal Documentation: incurred in connection with the preparation
and delivery of this Agreement, the Agency Agreement, the Trust
Deed (and any Trust Deed Supplement, as applicable) and any
Relevant Agreement and any other documents connected with the
Programme or any Notes;
15.1.4 Printing: of and incidental to the setting, proofing, printing and
delivery of the US Prospectus, the Base Prospectus, any
Preliminary Prospectus Supplement/Final Terms, any Prospectus
Supplement/Final Terms, any Preliminary Drawdown Prospectus, any
Drawdown Prospectus, each Pricing Annex and any Note Certificates
(in global or definitive form) including inspection and
authentication;
15.1.5 Agents: of the other parties to the Agency Agreement;
15.1.6 Admission to trading: incurred at any time in connection with the
application for any Notes to be admitted to listing, trading
and/or quotation by any listing authorities, stock exchanges
and/or quotation systems and the maintenance of any such
admission(s);
15.1.7 SEC Filing: incurred at any time in connection with the filing of
the Registration Statement, the US Prospectus and each US
Prospectus Supplement with the SEC or any authority administering
any state securities laws;
15.1.8 Advertising: of any advertising agreed upon between the Issuer and
the Arranger or the Mandated Dealer;
15.1.9 Passporting: incurred in connection with passporting the Base
Prospectus into another Member State of the European Union
including, without limitation, the costs of any necessary
translation; and
15.1.10 Qualification of Notes: incurred by the Loan Note Issuer and/or
the Receivables Trustee and which are reasonable, in connection
with the Loan Note Issuer' or the Receivables Trustee's (as the
case may be) undertaking pursuant to Clause 5.6.
15.2 Taxes
All payments in respect of the obligations of the Issuer, HSBC, Loan Note
Issuer No.1 the Receivable Trustee and the Dealers under this Agreement
and each Relevant Agreement shall be made free and clear of, and without
withholding or deduction for,
any taxes, duties, assessments or governmental charges of whatsoever
nature imposed, levied, collected, withheld or assessed by the relevant
party's taxing jurisdiction, or any political subdivision or any authority
thereof or therein having power to tax, unless such withholding or
deduction is required by law.
15.3 Stamp Duties
The Issuer shall pay all stamp, registration and other similar taxes
(which shall not, for the avoidance of doubt, include VAT) and duties
(including any interest and penalties thereon or in connection therewith)
which may be payable upon or in connection with the establishment of the
Programme, the issue or delivery of Notes and the entry into, execution
and delivery of this Agreement, the Agency Agreement, the Trust Deed (and
Trust Deed Supplement, as applicable), each Relevant Agreement and each
Prospectus Supplement/Final Terms (or Drawdown Prospectus, as the case may
be) and shall indemnify each Dealer against any claim, demand, action,
liability, damages, cost, loss or expense (including, without limitation,
legal fees) which it may incur or which may be made against it as a result
or arising out of or in relation to any failure to pay or delay in paying
any of the same.
15.4 Reimbursement of sums in respect of VAT
Any reference in this Agreement or any Relevant Agreement to any fee,
cost, loss, disbursement, expense or liability incurred by any party to
such agreement:
15.4.1 in respect of which such first party is to be reimbursed (or
indemnified) by any other party; or
15.4.2 the amount of which is to be taken into account in any calculation
or computation,
shall, save where the context otherwise requires, include a reference to
VAT incurred (including, without limitation, under section 8 of VATA) by
such first party in respect of such fee, cost, loss, disbursement, expense
or liability, save for where the first party concerned is HSBC, in which
case the reference to VAT is only to the extent that such first party is
not entitled to obtain credit or repayment in respect of such VAT from HM
Revenue & Customs or any other tax authority.
15.5 All sums exclusive of VAT
All sums payable by one party to another under or pursuant to this
Agreement shall be deemed to be exclusive of any VAT chargeable on any
supply for which that sum is the consideration for VAT purposes.
15.6 Payment of VAT
Where, under or pursuant to the terms of this Agreement, any party (the
"SUPPLIER") makes a supply to another person (the "RECIPIENT") for VAT
purposes and VAT is or becomes chargeable on such supply for which the
Supplier is required to account to HM Revenue & Customs or another tax
authority, the Recipient shall pay an additional amount to the Supplier
equal to that VAT, provided that the Recipient has received a valid VAT
invoice from the Supplier in respect of that supply.
16. NOTICES
16.1 Addresses for notices
All notices and communications hereunder or under any Relevant Agreement
shall be made in writing and in English (by letter or fax) and shall be
sent to the addressee at the address or fax number specified against its
name in Schedule 4 (Notice and Contact Details) (or, in the case of a
Dealer not originally party hereto, specified by notice to the Issuer and
the other Dealers at or about the time of its appointment as a Dealer) and
for the attention of the person or department therein specified (or as
aforesaid) or, in any case, to such other address or fax number and for
the attention of such other person or department as the addressee has by
prior notice to the sender specified for the purpose.
16.2 Effectiveness
Every notice or other communication sent in accordance with Clause 24.1
(Addresses for notices) shall be effective as follows:
16.2.1 Letter or fax: if sent by letter or fax, upon receipt by the
addressee; and
16.2.2 Telex: if sent by telex, upon receipt by the sender of the
addressee's answerback at the end of transmission;
provided, however, that any such notice or other communication which would
otherwise take effect (a) on a day which is not a business day in the
place of the addressee or (b) after 4.00 p.m. on any particular day shall
not, in either case, take effect until 10.00 a.m. on the immediately
succeeding business day in the place of the addressee.
17. CHANGES IN DEALERS
17.1 Termination and appointment
The Issuer may:
17.1.1 Termination: by 30 days' notice in writing to any Dealer,
terminate this Agreement in relation to such Dealer (but without
prejudice to any rights or obligations accrued or incurred on or
before the effective date of termination and in particular the
validity of any Relevant Agreement); and/or
17.1.2 New Dealer: nominate any institution as a new Dealer hereunder in
respect of the Programme, in which event, upon the confirmation by
such institution by way of a letter in the terms or substantially
in the terms set out in Schedule 5 (Form of Dealer Accession
Letter) or on any other terms acceptable to the Issuer and such
institution, such institution shall become a party hereto with all
the authority, rights, powers, duties and obligations of a Dealer
as if originally named as a Dealer hereunder; and/or
17.1.3 Dealer for a day: nominate any institution as a new Dealer
hereunder only in relation to a particular Class or Sub-Class of
Notes, in which event, upon the confirmation by such institution
of a letter in the terms or substantially in the terms set out in
Schedule 5 (Form of Dealer Accession Letter) or pursuant to
an agreement in or substantially in the form of Schedule 3 (Pro
Forma Subscription Agreement) or on any other terms acceptable to
the Issuer and such institution, such institution shall become a
party hereto with all the authority, rights, powers, duties and
obligations of a Dealer as if originally named as a Dealer hereunder
provided that:
(a) such authority, rights, powers, duties and obligations shall
extend to the relevant Class or Sub-Class of Notes only; and
(b) following the issue of the Notes of the relevant Class or
Sub-Class of Notes, the relevant new Dealer shall have no
further authority, rights, powers, duties or obligations
except such as may have accrued or been incurred prior to, or
in connection with, the issue of the relevant Class or
Sub-Class of Notes.
17.2 Resignation
Any Dealer may, by 30 days' written notice to the Issuer, resign as a
Dealer under this Agreement (but without prejudice to any rights or
obligations accrued or incurred on or before the effective date of
resignation and in particular the validity of any Relevant Agreement).
17.3 Notification
The Issuer will notify existing Dealers appointed generally in respect of
the Programme and the Paying Agents of any change in the identity of other
Dealers appointed generally in respect of the Programme as soon as
reasonably practicable thereafter.
18. INCREASE IN AUTHORISED AMOUNT
18.1 Notice
The Issuer may, from time to time, by giving at least 20 days' notice by
letter in substantially the form set out in Schedule 6 (Form of Notice of
Increase of Authorised Amount) to each of the Dealers, (with a copy to the
Paying Agents), request that the Authorised Amount be increased and unless
notice to the contrary is received by the Issuer no later than ten days
after receipt by the Dealers of the letter referred to above, each Dealer
will be deemed to have given its consent to the increase in the Authorised
Amount.
18.2 Effectiveness
Notwithstanding the provisions of Clause 26.1 (Notice), no increase shall
be effective unless and until:
18.2.1 Conditions precedent: each of the Dealers shall have received in
form, number and substance satisfactory to each such Dealer,
further and updated copies of the documents and confirmations
described in Schedule 2 (Initial Conditions Precedent) (with such
changes as may be relevant having regard to the circumstances at
the time of the proposed increase) and such further documents and
confirmations as may be requested by the Dealers including,
without limitation, a supplement to the Base Prospectus, not later
than ten days after receipt by the Dealers of the letter referred to
in Clause 18.1 (Notice); and
18.2.2 Compliance: the Issuer shall have complied with all legal and
regulatory requirements necessary for the issuance of, and
performance of obligations under, Notes up to such new Authorised
Amount,
and upon such increase taking effect, all references in this Agreement to
the Programme and the Authorised Amount being in a certain principal
amount shall be to the increased principal amount.
19. ASSIGNMENT
19.1 Successors and assigns
This Agreement shall be binding upon and shall inure for the benefit of
the Issuer and the Dealers and their respective successors and permitted
assigns.
19.2 Issuer
The Issuer may not assign its rights or transfer its obligations, other
than pursuant to the Trust Deed, under this Agreement or any Relevant
Agreement, in whole or in part, without the prior written consent of each
of the Dealers or, as the case may be, the Relevant Dealer(s) and any
purported assignment or transfer without such consent shall be void.
19.3 Dealers
No Dealer may assign any of its rights or delegate or transfer any of its
obligations under this Agreement or any Relevant Agreement, in whole or in
part, without the prior written consent of the Issuer and any purported
assignment or transfer without such consent shall be void, except for an
assignment and transfer of all of a Dealer's rights and obligations
hereunder in whatever form such Dealer determines may be appropriate to a
partnership, corporation, trust or other organisation in whatever form
that may succeed to, or to which the Dealer transfers, all or
substantially all of such Dealer's assets and business relevant to the
performance of such Dealer's obligations under this Agreement or any
Relevant Agreement and that assumes such obligations by contract,
operation of law or otherwise. Upon any such transfer and assumption of
obligations, such Dealer shall be relieved of, and fully discharged from,
all obligations hereunder and any Relevant Agreement, whether such
obligations arose before or after such transfer and assumption.
20. CURRENCY INDEMNITY
20.1 Non-contractual currency
Any amount received or recovered by a Dealer from the Issuer in a currency
other than that in which the relevant payment is expressed to be due (the
"CONTRACTUAL CURRENCY") as a result of, or of the enforcement of, a
judgment or order of a court of any jurisdiction or otherwise in respect
of any sum due to it from the Issuer in connection with this Agreement,
shall only constitute a discharge to the Dealer to the extent of the
amount in the Contractual Currency which such Dealer is able to
purchase with the amount so received or recovered in that other currency
on the date of that receipt or recovery (or, if it is not practicable to
make that purchase on that date, on the first date on which it is
practicable to do so).
20.2 Indemnities
If any amount referred to in Clause 28.1 (Non-contractual currency)
received or recovered by a Dealer is less than the amount in the
Contractual Currency expressed to be due to such Dealer under this
Agreement, the Issuer shall indemnify such Dealer against any loss
sustained by such Dealer as a result. In any event, the Issuer shall
indemnify such Dealer against any cost of making such purchase which is
reasonably incurred.
20.3 Separate obligations
The indemnities referred to in Clause 28.2 (Indemnities) constitute a
separate and independent obligation from the Issuer's other obligations,
shall give rise to a separate and independent cause of action, shall apply
irrespective of any indulgence granted by any Dealer and shall continue in
full force and effect despite any judgment, order, claim or proof for a
liquidated amount in respect of any sum due in connection with this
Agreement or any judgment or order. Any such loss aforesaid shall be
deemed to constitute a loss suffered by the relevant Dealer and no proof
or evidence of any actual loss will be required by the Issuer.
21. LAW AND JURISDICTION
21.1 Governing law
This Agreement and all matters arising from or connected with it are
governed by, and shall be construed in accordance with, English law.
21.2 English courts
The courts of England have exclusive jurisdiction to settle any dispute (a
"DISPUTE"), arising from or connected with this Agreement (including a
dispute regarding the existence, validity or termination of this
Agreement) or the consequences of its nullity.
21.3 Appropriate forum
The parties agree that the courts of England are the most appropriate and
convenient courts to settle any Dispute and, accordingly, that they will
not argue to the contrary.
21.4 Consent to enforcement etc.
Each of the parties consents generally in respect of any Proceedings to
the giving of any relief or the issue of any process in connection with
such Proceedings including (without limitation) the making, enforcement or
execution against any property whatsoever (irrespective of its use or
intended use) of any order or judgment which is made or given in such
Proceedings.
21.5 Waiver of immunity
To the extent that any party hereto may in any jurisdiction claim for
itself or its assets or revenues immunity from suit, execution, attachment
(whether in aid of execution, before judgment or otherwise) or other legal
process and to the extent that such immunity (whether or not claimed) may
be attributed in any such jurisdiction to any
party hereto or its respective assets or revenues, each party agrees not
to claim and irrevocably waives such immunity to the full extent permitted
by the laws of such jurisdiction.
22. COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original. Any party may enter into this Agreement
by signing any such counterpart.
23. RIGHTS OF THIRD PARTIES
Without prejudice to the rights of any shareholder, officer, employee,
agent or director to rely on Clauses 16 (Obligations as Corporate
Obligations) and 17 (Non-Petition) hereof, a person who is not a party to
this Agreement has no right under the Contracts (Rights of Third Parties)
▇▇▇ ▇▇▇▇ to enforce any term of this Agreement.
AS WITNESS the hands of the duly authorised representatives of the parties
hereto the day and year first before written.
SCHEDULE 1
SELLING RESTRICTIONS
1. GENERAL
1.1 NO ACTION TO PERMIT PUBLIC OFFERING
Each Dealer acknowledges that, other than with respect to the
registration of the Notes with the SEC under the Securities Act and the
admission of the Notes to listing, trading and/or quotation by the
relevant Stock Exchanges, no action has been or will be taken in any
jurisdiction by the Issuer that would permit a public offering of the
Notes, or possession or distribution of any offering material in relation
thereto, in any country or jurisdiction where action for that purpose is
required.
1.2 DEALERS' COMPLIANCE WITH APPLICABLE LAWS
Each Dealer undertakes to the Issuer that it and its agents will comply
with all applicable laws and regulations in each country or jurisdiction
in which it purchases, offers, sells or delivers Notes or has in its
possession or distributes such offering material, in all cases at its
own expense.
2. UNITED KINGDOM
In relation to each Series of Notes, each Relevant Dealer represents,
warrants and undertakes to the Issuer and each other Relevant Dealer (if
any) that:
2.1 No deposit-taking: in relation to any Notes which have a maturity of less
than one year:
2.1.1 it is a person whose ordinary activities involve it in acquiring,
holding, managing or disposing of investments (as principal or
agent) for the purposes of its business and:
2.1.2 it has not offered or sold and will not offer or sell any Notes
other than to persons:
(a) whose ordinary activities involve them in acquiring,
holding, managing or disposing of investments (as principal
or agent) for the purposes of their businesses; or
(b) who it is reasonable to expect will acquire, hold, manage
or dispose of investments (as principal or agent) for the
purposes of their businesses,
where the issue of the Notes would otherwise constitute a
contravention of Section 19 of the FSMA by the Issuer;
2.2 Financial promotion: it has only communicated or caused to be
communicated and will only communicate or cause to be communicated an
invitation or inducement to engage in investment activity (within the
meaning of section 21 of the FSMA) received by it in connection with the
issue or sale of any Notes in circumstances in which section 21(1) of the
FSMA does not apply to the Issuer;
2.3 General compliance: it has complied and will comply with all applicable
provisions of the FSMA with respect to anything done by it in relation to
any Notes in, from or otherwise involving the United Kingdom.
SCHEDULE 2
INITIAL CONDITIONS PRECEDENT
1. CONSTITUTIVE DOCUMENTS
A certified true copy of the memorandum and articles of association of the
Issuer, HSBC, Loan Note Issuer No.1 and the Receivables Trustee.
2. AUTHORISATIONS
Certified true copies of all relevant resolutions and other authorisations
required to be passed or given, and evidence of any other action required
to be taken, on behalf of the Issuer, HSBC, the Receivables Trustee and
Loan Note Issuer No.1 authorising the establishment of the Programme, the
issue of Notes thereunder, the execution and delivery of the Dealer
Agreement, the Agency Agreement, the Trust Deed (and Trust Deed
Supplement, as applicable) and the Note Certificates and the performance
of the Issuer's obligations thereunder and the appointment of the persons
named in the lists referred to in paragraph 3 below.
3. INCUMBENCY CERTIFICATES
In respect of the Issuer, HSBC, the Receivables Trustee and Loan Note
Issuer No.1 a list of the names, titles and specimen signatures of the
persons authorised:
(a) to sign on its behalf the above mentioned documents;
(b) to enter into any Relevant Agreement with any Dealer(s);
(c) to sign on its behalf all notices and other documents to be delivered
pursuant thereto or in connection therewith; and
(d) to take any other action on its behalf in relation to the Programme.
4. CONSENTS
A certified true copy of any necessary governmental, regulatory, tax,
exchange control or other authorisations, approvals or consents.
5. DEALER AGREEMENT
The Dealer Agreement, duly executed.
6. AGENCY AGREEMENT
The Agency Agreement, duly executed or a conformed copy thereof.
7. TRUST DEED (AND TRUST DEED SUPPLEMENT, AS APPLICABLE)
The Trust Deed (and Trust Deed Supplement, as applicable), duly executed
or a conformed copy thereof.
8. BASE PROSPECTUS
The Base Prospectus.
9. CONFIRMATION OF ADMISSION TO TRADING
Confirmation of the admission of the Programme to listing on the Official
List of the UK Listing Authority and to trading on the London Stock
Exchange subject only to the issue of Notes.
10. LEGAL OPINIONS
Legal opinions from lawyers in Jersey, Northern Ireland and Scotland and
from ▇▇▇▇▇▇▇▇ Chance Limited Liability Partnership, London in
substantially the form agreed to on or about the date of this Agreement.
11. AUDITORS' COMFORT LETTERS
The Comfort letters provided from auditors to the Issuer in respect of any
financial disclosure under the Base Prospectus.
12. MASTER GLOBAL NOTE CERTIFICATES
Confirmation that on the relevant Issue Date, the Global Note
Certificates, duly executed on behalf of the Issuer and authenticated by
the Registrar in accordance with the Agency Agreement have been deposited
with HSBC Issuer Services Common Depositary Nominee (UK) Limited as common
depositary for Clearstream and Euroclear or HSBC Bank USA, National
Association as custodian for DTC (as applicable), for credit on the
relevant Issue Date to the accounts of Clearstream and Euroclear or DTC
(as applicable) with such common depositary or custodian (as applicable),
for credit to such accounts with Clearstream and Euroclear or DTC (as
applicable) as the Arranger(s), on behalf of the Dealers, may direct.
SCHEDULE 3
PRO FORMA SUBSCRIPTION AGREEMENT
▇▇▇▇▇▇▇▇ LIMITED LIABILITY PARTNERSHIP
CHANCE
TURQUOISE CARD BACKED SECURITIES PLC
$10,000,000,000
TURQUOISE FUNDING MEDIUM TERM NOTE PROGRAMME
[CURRENCY][AMOUNT]
SERIES [__] DUE [MATURITY]
----------
SUBSCRIPTION AGREEMENT
----------
THIS AGREEMENT is made on [date]
BETWEEN:
(1) TURQUOISE CARD BACKED SECURITIES PLC, a public limited liability company
incorporated in England and Wales with company number 5506646 and whose
registered office is at c/o Wilmington Trust SP Services (London) Limited
Tower 42 (Level 11), ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (the "ISSUER");
(2) HSBC BANK PLC, a public limited liability company incorporated in England
and Wales (registered number 14259) having its registered office at ▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ("HSBC");
(3) TURQUOISE FUNDING 1 LIMITED, a private limited liability company
incorporated in Jersey, Channel Islands, with registration number 92327
and having its registered office at ▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇
▇▇▇ Channel Islands ("LOAN NOTE ISSUER NO.1");
(4) TURQUOISE RECEIVABLES TRUSTEE LIMITED, a private limited company
incorporated under the laws of Jersey, Channel Islands with company
number 92324 and having its registered office at ▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇ Channel Islands ("RECEIVABLES TRUSTEE");
(5) HSBC BANK PLC as the arranger (the "ARRANGER") and as a dealer (a
"DEALER"); and
(6) [___] (together the "DEALERS" which expression shall include any
institution(s) appointed as a Dealer in accordance with Clause 16.1.2
(New Dealer) or Clause 16.1.3 (Dealer for a Day), and save as specified
herein, exclude any institutions(s) whose appointment as a Dealer has
been terminated in accordance with Clause 16.1.1 (Termination) or which
has resigned in accordance with Clause 16.2 (Resignation) PROVIDED THAT
where any such institution has been appointed as Dealer in relation to a
particular Class or Sub-Class of Notes of a Series (as defined below) the
expression "Dealer" or "Dealers" shall only mean or include such
institution in relation to such Class or Sub-Class).
WHEREAS:
(A) The Issuer has established a medium term note programme (the
"PROGRAMME") in connection with which it has entered into a dealer
agreement dated 23 May 2006, as amended and restated on [__]
October 2006 (the "DEALER AGREEMENT") between, inter alios, the
Issuer, the Receivables Trustee, Loan Note Issuer No.1 and HSBC.
(B) Pursuant to the Dealer Agreement, the Issuer is entitled to issue
Notes (as defined in the Dealer Agreement) under the Programme to
institutions who become Dealers in relation to a particular Class
or Sub-Class of Notes only. Each of the Dealers is either a Dealer
in relation to the Programme or has agreed to become a Dealer in
relation to the Notes (as defined below) pursuant to the
provisions of this Agreement.
(C) The Issuer proposes to issue [description of Notes] Notes due
[maturity date] (the "NOTES") and the Dealers wish to subscribe
for such Notes.
IT IS AGREED as follows:
1. INTERPRETATION
1.1 RELEVANT AGREEMENT
This Agreement is a "RELEVANT AGREEMENT" as that term is defined in the
Dealer Agreement and each of the Dealers is a Dealer on the terms set out
in the Dealer Agreement, save as expressly modified herein. This Agreement
is supplemental to, and should be read and construed in conjunction with,
the Dealer Agreement. For the avoidance of doubt Clauses 7 (Obligations as
Corporate Obligations) and 8 (Non-Petition) of the Dealer Agreement shall
apply to this Agreement mutatis mutandis and shall be deemed to be
incorporated herein.
1.2 THE NOTES
The Notes are issued under the Programme and accordingly are Notes as
defined in and for the purposes of the Dealer Agreement, the Agency
Agreement, the Trust Deed and the relevant Trust Deed Supplement.
1.3 DEFINED TERMS AND CONSTRUCTION
All terms and expressions which have defined meanings in the Dealer
Agreement shall have the same meanings in this Agreement except where the
context requires otherwise or unless otherwise stated. In the event of any
conflict or inconsistency between the provisions of this Agreement and the
Dealer Agreement, the provisions of this Agreement shall apply. The
provisions of Clauses 1.2 (Clauses and Schedules) to 1.5 (Headings) of the
Dealer Agreement shall apply to this Agreement mutatis mutandis. In
addition, for the purposes of this Subscription Agreement, "APPLICABLE
TIME" shall mean [time] on [day] [month], [year] and "DISCLOSURE PACKAGE"
shall mean the following documents: [___].
2. NEW DEALER(S)
2.1 APPOINTMENT
It is agreed that each of [____], [____] and [____] (for the
purposes of this Clause 2, a "NEW DEALER") shall become a Dealer
upon the terms of the Dealer Agreement with all the authority,
rights, powers, duties and obligations of a Dealer as if originally
named as a Dealer under the Dealer Agreement provided that:
2.1.1 Notes only: such authority, rights, powers, duties and obligations
shall extend to the Notes only; and
2.1.2 Termination: following the issue of the Notes, each New Dealer shall
have no further authority, rights, powers, duties or obligations
except such as may have accrued or been incurred prior to, or in
connection with, the issue of the Notes.
2.2 CONDITIONS PRECEDENT DOCUMENTS
Each New Dealer confirms that it has received sufficient copies of such of
the conditions precedent documents and confirmations listed in Schedule 2
(Initial Conditions Precedent) to the Dealer Agreement as it has requested,
that these have
been found satisfactory to it and that the delivery of any of the other
documents or confirmations listed in Schedule 2 (Initial Conditions
Precedent) to the Dealer Agreement is not required.
3. ISSUE OF THE NOTES
3.1 [US PROSPECTUS] [PROSPECTUS SUPPLEMENT/FINAL TERMS][DRAWDOWN PROSPECTUS]
The Issuer confirms that it has approved a [US Prospectus] [Prospectus
Supplement/Final Terms][Drawdown Prospectus] (the "[US PROSPECTUS]
[PROSPECTUS SUPPLEMENT/FINAL TERMS] [DRAWDOWN PROSPECTUS]") dated [date] in
connection with the issue of the Notes and confirms that the [US
Prospectus] [Prospectus Supplement/Final Terms][Drawdown Prospectus] is an
authorised document for the purposes of Clause 12 (Authority to Distribute
Documents) of the Dealer Agreement.
3.2 UNDERTAKING TO ISSUE
The Issuer undertakes to the Dealers that, subject to and in accordance
with the provisions of this Agreement, the Notes will be issued on [date]
(the "ISSUE DATE"), in accordance with this Agreement and the Agency
Agreement.
3.3 UNDERTAKING TO SUBSCRIBE
The Dealers undertake to the Issuer that, subject to and in accordance with
the provisions of this Agreement, they will subscribe and pay for the Notes
on the Issue Date at [figure] per cent. of the aggregate principal amount
of the Notes (the "ISSUE PRICE") [plus (if the Issue Date is postponed in
accordance with Clause 5.2 (Postponed closing)) any accrued interest in
respect thereof]. The obligations of the Dealers under this sub-clause are
joint and several.
3.4 [FIXED PRICE RE-OFFERING
Each Dealer represents, warrants and agrees that, prior to being notified
by the Lead Dealer that the Notes are free to trade, it has not offered or
sold and will not offer or sell (and has procured and will procure that
none of its subsidiaries or affiliates offers or sells) any Notes at a
price less than the offered price set by the Lead Dealer.]
3.5 [AGREEMENT AMONG DEALERS
The execution of this Agreement on behalf of all parties hereto will
constitute acceptance by each Dealer of the IPMA Agreement Among Dealers
Version 1 subject to any amendment notified to such Dealer in writing at
any time prior to the earlier of the receipt by the Arranger of the
document appointing such Dealer's authorised signatory and its execution of
this Agreement.]
3.6 [ADDITIONAL SELLING RESTRICTIONS
The Dealers undertake to the Issuer that they will comply with the
provisions of Appendix 1 (Additional Selling Restrictions).]
4. FEES AND EXPENSES
4.1 In consideration of the agreement by the Dealers to subscribe for the
Notes as aforesaid, the Issuer shall, on the Issue Date pay to the
Dealers, by way of set-off against the Issue Price of the Notes a combined
management, underwriting and selling commission of
[__] per cent. (the "COMBINED MANAGEMENT, UNDERWRITING AND SELLING
COMMISSION ) of the aggregate principal amount of the Notes.
4.2 Subject to receipt of proper invoices therefor addressed to the Issuer,
the Issuer will pay or arrange for payment of (to the extent such sums are
due and it is liable therefor) those cost, fees and expenses contemplated
in Clauses 14.1 and 14.3 of the Dealer Agreement.
4.3 In the event that the closing of the issuance of the Notes does not take
place pursuant to Clause 5 (Closing), the Issuer shall be obliged to pay
all costs and expenses of the Dealers expressed hereunder to be paid by
the Issuer on the Issue Date on demand following the date of postponement
to the extent agreed that such amounts have been incurred prior to the
Issue Date (but excluding therefrom, for the avoidance of doubt, the
amounts payable under Clause 4.1).
4.4 All payments in respect of the Issuer's, HSBC's, Loan Note Issuer No.1's,
the Receivables Trustee's and the Dealers' obligations hereunder shall be
made free and clear of, and without withholding or deduction for, any
taxes, duties, assessments or governmental charges of whatsoever nature
imposed, levied, collected, withheld or assessed by the United Kingdom or
any political subdivision or any authority thereof or therein having power
to tax, unless such withholding or deduction is required by law.
4.5 All sums payable by one party to another under or pursuant to this
Agreement shall be deemed to be exclusive of any VAT chargeable on any
supply for which that sum is the consideration for VAT purposes.
4.6 Where, under or pursuant to the terms of this Agreement, any party (the
"SUPPLIER") makes a supply to another person (the "RECIPIENT") for VAT
purposes and VAT is or becomes chargeable on such supply for which the
Supplier is required to account to HM Revenue & Customs or another tax
authority, the Recipient shall pay an additional amount to the Supplier
equal to that VAT, provided that the Recipient has received a valid VAT
invoice from the Supplier in respect of that supply.
5. CLOSING
5.1 CLOSING
Subject to Clause 5.3 (Conditions precedent), the closing of the issuance
of the Notes shall take place on the Issue Date, whereupon:
5.1.1 Delivery of Global Note Certificates: the Issuer shall deliver the
Global Note Certificates, duly executed on behalf of the Issuer and
authenticated by the Registrar in accordance with the Agency
Agreement, to [__] as [common depositary designated for the purpose
by Euroclear and Clearstream] [and/or [__] as custodian for DTC] for
credit on the Issue Date to the accounts of [Euroclear and
Clearstream] [and/or DTC] with such common depositary [and/or
custodian]; and
5.1.2 Payment of net issue proceeds: against such delivery, the Dealers
shall procure the payment of the net proceeds of the issue of the
Notes (namely the Issue Price
less the fees and expenses that are to be deducted pursuant to
Clause 4 (Fees and Expenses)) to the Issuer by credit transfer in
the currency of the Notes in immediately available funds to such
account as the Issuer has designated to the Dealer.
5.2 POSTPONED CLOSING
The Issuer, HSBC, Loan Note Issuer No.1, the Receivables Trustee and the
Dealers may agree to postpone the Issue Date to another date not later
than 14 days after the Issue Date, whereupon all references herein to the
Issue Date shall be construed as being to that later date.
5.3 CONDITIONS PRECEDENT
The Dealers shall only be under an obligation to subscribe and pay for the
Notes if the conditions precedent set out in Clause 3.1 (Conditions
precedent to first issue of Notes) and Clause 3.2 (Conditions precedent to
any issue of Notes) of the Dealer Agreement have been satisfied including,
without prejudice to the foregoing, the receipt by the Dealers on the
[Issue Date]/[last day preceding the Issue Date on which banks are open
for general business and on which dealings in foreign currency may be
carried on in London (the "PRE-CLOSING DATE")] of the following:
5.3.1 legal opinions dated the Issue Date:
(1) addressed to the Dealers, the Note Trustee, the Issuer, HSBC, Loan
Note Issuer No.1 and the Receivables Trustee from ▇▇▇▇▇▇▇▇ Chance
Limited Liability Partnership; and
(2) addressed to the Dealers, the Note Trustee, the Issuer, HSBC, Loan
Note Issuer No.1 and the Receivables Trustee from (1) ▇▇▇▇▇▇
▇▇▇▇▇▇▇, Jersey counsel, (2) ▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇, Scottish
counsel and (3) Tughans, Northern Irish counsel,
each in substantially agreed form;
5.3.2 closing certificates dated the Issue Date, addressed to the Dealers and
signed by a director or other duly authorised person on behalf of each of
the Issuer, HSBC, Loan Note Issuer No.1 and the Receivables Trustee, as
appropriate, each such certificate being in substantially agreed form;
5.3.3 an incumbency certificate addressed to the Dealers and signed by a
director or other duly authorised person on behalf of the Issuer, such
certificate being in substantially agreed form;
5.3.4 a signing comfort letter dated the date of this Agreement (in respect of
the Disclosure Package as of the Applicable Time) and [other than for
Series 2006-1] a closing comfort letter (in respect of the Final Offering
Document as of its date and as of the Closing Date) dated the Issue Date
in relation to the Issuer and the Loan Note Issuer No.1 addressed, inter
alios, to the Dealers from [auditor/accountant], each such letter being in
substantially a form agreed by the Dealers and HSBC;
5.3.5 [confirmation from each of the Rating Agencies of the rating of the Notes
contemplated by the Relevant Agreement];
5.3.6 [a DTC Letter of Representations].
6. SURVIVAL
The provisions of this Agreement shall continue in full force and effect
notwithstanding the completion of the arrangements set out herein for the
issue of the Notes and regardless of any investigation by any party
hereto.
7. 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.
8. NOTICES
Any notification hereunder to the Issuer shall be made in accordance with
the provisions of Clause 15 (Notices) of the Dealer Agreement and, in the
case of notification to the Dealers, shall be to the Dealers by telex or
fax or in writing at:
[_________________]
Telex: [__]
Fax: [__]
Attention: [__]
9. GOVERNING LAW AND JURISDICTION
This Agreement is governed by, and shall be construed in accordance with,
English law. The provisions of Clause 20 (Law and Jurisdiction) of the
Dealer Agreement shall be deemed to be incorporated by reference into this
Agreement mutatis mutandis.
10. COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of which
shall be deemed an original. Any party may enter into this Agreement by
signing any such counterpart.
11. RIGHTS OF THIRD PARTIES
Without prejudice to the rights of any shareholder, officer, employee,
agent or director to rely on Clauses 7 (Obligations as Corporate
Obligations) and 8 (Non-Petition) of the Dealer Agreement incorporated
herein by virtue of Clause 1.1 of this Agreement, a person who is not a
party to this Agreement has no right under the Contracts (Rights of Third
Parties) ▇▇▇ ▇▇▇▇ to enforce any term of this Agreement.
[APPENDIX 1
ADDITIONAL SELLING RESTRICTIONS]
[If relevant]
AS WITNESS the hands of the duly authorised representatives of the parties
hereto the day and year first before written.
The Issuer
TURQUOISE CARD BACKED SECURITIES PLC
By:
---------------------------------
HSBC
HSBC BANK PLC
By:
---------------------------------
Loan Note Issuer No.1
TURQUOISE FUNDING 1 LIMITED
By:
---------------------------------
The Receivables Trustee
TURQUOISE RECEIVABLES TRUSTEE LIMITED
By:
---------------------------------
The Arranger
HSBC BANK PLC
By:
---------------------------------
The Dealers
[___]
By:
---------------------------------
SCHEDULE 4
NOTICE AND CONTACT DETAILS
THE ISSUER
TURQUOISE CARD BACKED SECURITIES PLC
Address: c/o Wilmington Trust SP Services (London) Limited
Tower 42 (Level 11),
▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Tel: ▇▇▇ (▇) ▇▇ ▇▇▇▇ ▇▇▇▇
Fax: ▇▇▇ (▇) ▇▇ ▇▇▇▇ ▇▇▇▇
Attention: The Directors
HSBC
HSBC BANK PLC
Address: ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Tel: ▇▇▇ (▇) ▇▇ ▇▇▇▇ ▇▇▇▇
Fax: ▇▇▇ (▇) ▇▇ ▇▇▇▇ ▇▇▇▇
Attention: HSBC Card Services
LOAN NOTE ISSUER NO.1
TURQUOISE FUNDING 1 LIMITED
Address: ▇▇ ▇▇▇ ▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇ ▇▇▇
Channel Islands
Tel: + ▇▇ (▇) ▇▇▇▇ ▇▇▇ ▇▇▇
Fax: + ▇▇ (▇) ▇▇▇▇ ▇▇▇ ▇▇▇
Attention: Directors
THE RECEIVABLES TRUSTEE
TURQUOISE RECEIVABLES TRUSTEE LIMITED
Address: ▇▇ ▇▇▇ ▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇ ▇▇▇
Channel Islands
Tel: + ▇▇ (▇) ▇▇▇▇ ▇▇▇ ▇▇▇
Fax: + ▇▇ (▇) ▇▇▇▇ ▇▇▇ ▇▇▇
Attention: Directors
DEALER
HSBC BANK PLC
Address: ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Tel: ▇▇▇ (▇)▇▇ ▇▇▇▇ ▇▇▇▇
Fax: ▇▇▇ (▇)▇▇ ▇▇▇▇ ▇▇▇▇
Attention: Transaction Development
SCHEDULE 5
FORM OF DEALER ACCESSION LETTER
[New Dealer]
[Address]
Dear Sirs
TURQUOISE CARD BACKED SECURITIES PLC
c/o Wilmington Trust SP Services (London) Limited
Tower 42 (Level 11),
▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
[CURRENCY][AMOUNT]
TURQUOISE FUNDING MEDIUM TERM NOTE PROGRAMME
We refer to our Turquoise Funding Medium Term Note Programme (the "PROGRAMME")
for the issuance of notes, in connection with which we have entered into a
dealer agreement [dated [date]] (the "DEALER AGREEMENT") between, inter alios,
ourselves, the Receivables Trustee, the Loan Note Issuer No.1 and HSBC. All
terms and expressions which have defined meanings in the Dealer Agreement shall
have the same meanings in this letter except where the context requires
otherwise or unless otherwise stated.
We have pleasure in inviting you to become a Dealer upon the terms of the Dealer
Agreement [but only in respect of [specify Class or Sub-Class of Notes (the
"NOTES")]], a copy of which has been supplied to you by us.
We are enclosing such copies of the conditions precedent as set out in Schedule
2 (Initial Conditions Precedent) to the Dealer Agreement as you have requested
together with copies of any updates or supplements thereto as have been
delivered to the existing Dealers.
Please return a copy of this letter to us signed by an authorised signatory
whereupon you will become a Dealer for the purposes [Clause 17.1.2 (New
Dealer)/Clause 17.1.3 (Dealer for a Day)] of the Dealer Agreement with [,subject
as hereinafter provided,] all the authority, rights, powers, duties and
obligations of a Dealer under the Dealer Agreement [except that, following the
issue of the Notes, you shall have no further authority, rights, powers, duties
or obligations except such as may have accrued or been incurred prior to, or in
connection with, the issue of the Notes].
This letter is governed by, and shall be construed in accordance with, English
law. The provisions of Clause 21 (Law and Jurisdiction) of the Dealer Agreement
shall apply to this letter as if set out herein in full.
Yours faithfully
TURQUOISE CARD BACKED SECURITIES PLC
c/o Wilmington Trust SP Services (London) Limited
Tower 42 (Level 11),
▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
By:
------------------------------------
CONFIRMATION
We hereby accept our appointment as a Dealer under the Dealer Agreement upon the
terms of this letter [but only in respect of [specify Class or Sub-Class of
Notes]].
We confirm that we are in receipt of all the documents which we have requested
and have found them to be satisfactory.
For the purposes of the Dealer Agreement our communication details are as set
out below.
[NEW DEALER]
By:
------------------------------------
Date:
Address: [__]
[Telex: [number and answerback]]
Fax: + [number]
Attention: [name or department]
[copies to:
(i) all existing Dealers who have been appointed in respect of the
Programme generally;
(ii) the existing Paying Agents]
SCHEDULE 6
FORM OF NOTICE OF INCREASE OF AUTHORISED AMOUNT
To: [list all current Dealers appointed in
respect of the Programme generally, and each of the
Paying Agents]
Dear Sirs
TURQUOISE CARD BACKED SECURITIES PLC
c/o Wilmington Trust SP Services (London) Limited
Tower 42 (Level 11),
▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
[CURRENCY][AMOUNT]
TURQUOISE FUNDING MEDIUM TERM NOTE PROGRAMME
We refer to our Turquoise Funding Medium Term Note Programme (the "PROGRAMME")
for the issuance of notes, in connection with which we have entered into a
dealer agreement [dated [date]] (the "DEALER AGREEMENT") between, inter alios,
ourselves, the Receivables Trustee, the Loan Note Issuer No.1 and HSBC. All
terms and expressions which have defined meanings in the Dealer Agreement shall
have the same meanings in this letter except where the context requires
otherwise or unless otherwise stated.
Pursuant to Clause 18 (Increase in Authorised Amount) of the Dealer Agreement,
we hereby request that the Authorised Amount of the Programme be increased from
[currency] [amount] to [currency] [amount] with effect from [date] or such later
date upon which the requirements of Clause 18.2 (Effectiveness) of the Dealer
Agreement shall be fulfilled, subject always to the provisions of Clause 18.2
(Effectiveness) of the Dealer Agreement.
Unless we receive notice to the contrary from you no later than ten days after
your receipt of this letter, you will (subject to our compliance with all
matters contemplated in Clause 18.2 (Effectiveness) of the Dealer Agreement) be
deemed to have consented to the increase in the Authorised Amount.
From the date upon which the increase in the Authorised Amount becomes
effective, all references in the Dealer Agreement to the Programme and the
Authorised Amount being in a certain principal amount shall be to the increased
principal amount as specified herein.
This letter is governed by, and shall be construed in accordance with, English
law. The provisions of Clause 21 (Law and Jurisdiction) of the Dealer Agreement
shall apply to this letter as if set out herein in full.
Yours faithfully,
SCHEDULE 7
FORM OF PRICING ANNEX
PRICING ANNEX
The Issuer proposes to issue and sell Series 200[_]-[_], Class A Notes, Series
200[_]-[_], Class B Notes and Series 200[_]-[_], Class C Notes under the
$10,000,000,000 Turquoise Funding Medium Term Note Programme pursuant to the
Base Prospectus dated [__] October 2006 2006, as supplemented by the Prospectus
Supplement/Final Terms dated [__].
ISSUER TURQUOISE CARD BACKED SECURITIES PLC
The Issuer proposes to issue: Class A Notes Class B Notes Class C Notes
Principal Amount : [$][(euro)][(pound)] [_],000,000 [$][(euro)][(pound)] [_],000,000 [$][(euro)][(pound)] [_],000,000
Interest Rate: [_]% per annum plus [_] rate of [_]% per annum plus [_] rate of [_]% per annum plus [_] rate of
relevant Interest Period relevant Interest Period relevant Interest Period
Interest Payment Dates: During the Revolving Period and During the Revolving Period and During the Revolving Period and
the Controlled Accumulation the Controlled Accumulation the Controlled Accumulation
Period prior to the Scheduled Period prior to the Scheduled Period prior to the Scheduled
Redemption Date, the [_] day of Redemption Date, the [_] day of Redemption Date, the [_] day of
[_], [_], [_] and [_], beginning [_], [_], [_] and [_], beginning [_], [_], [_] and [_], beginning
[_] and during any Amortisation [_] and during any Amortisation [_] and during any Amortisation
Period the [_] day of each Period the [_] day of each Period the [_] day of each
month, in each case subject to month, in each case subject to month, in each case subject to
adjustment for non-Business Days adjustment for non-Business Days adjustment for non-Business Days
Scheduled Redemption Date: [_______], 20[__] [_______], 20[__] [_______], 20[__]
Final Redemption Date: [_______], 20[__] [_______], 20[__] [_______], 20[__]
Price to public: [$][(euro)][(pound)] [_],000,000 [$][(euro)][(pound)] [_],000,000 [$][(euro)][(pound)] [_],
(or [__]%) (or [__]%) 000,000 (or [__]%)
Underwriting discount: [$][(euro)][(pound)][_],000,000 [$][(euro)][(pound)][__],000,000 [$][(euro)][(pound)][_],
(or [__]%) (or [__]%) 000,000 (or [__]%)
Proceeds to Sponsor: [$][(euro)][(pound)][__],000,000 [$][(euro)][(pound)][__],000,000 [$][(euro)][(pound)][_],
(or [__]%) (or [__]%) 000,000 (or [__]%)
ISSUER TURQUOISE CARD BACKED SECURITIES PLC
Initial Principal Balance: [$][(euro)][(pound)] [_] [$][(euro)][(pound)] [_] [$][(euro)][(pound)] [_]
$ Equivalent Initial Principal [$] [$] [$]
Balance:
% of Total Principal Balance: [_] [_] [_]
Anticipated Rating: [_] [_] [_]
Rating Agencies: [_] [_] [_]
Issue Date: [_] [_] [_]
Issue Price: [_] [_] [_]
Net Proceeds: [_] [_] [_]
Specified Currency: [_] [_] [_]
Minimum Denomination: [_] [_] [_]
Specified Denomination(s): [_] [_] [_]
Fixed or Floating Designation: [_] [_] [_]
Series Scheduled Redemption [_] [_] [_]
Date:
Final Redemption Date: [_] [_] [_]
Credit Enhancement (if any): [_] [_] [_]
Initial Rate (if applicable): [_] [_] [_]
Margin: [_] [_] [_]
[LIBOR/EURIBOR] [_] [_] [_]
Day Count Fraction(s): [_] [_] [_]
Interest Commencement Date: [_] [_] [_]
Floating Rate Commencement [_] [_] [_]
Date (if applicable):
Interest Payment Dates: [_] [_] [_]
First Interest Payment Date: [_] [_] [_]
ISSUER TURQUOISE CARD BACKED SECURITIES PLC
Interest Rate Calculations: [_] [_] [_]
Listing: [_] [_] [_]
Additional Business Centre: [_] [_] [_]
Additional Financial Centre: [_] [_] [_]
Additional Interest Margin: [_] [_] [_]
Expenses Loan Amount: [_] [_] [_]
Additional Details of related [_] [_] [_]
Swap Agreement (if any):
Subordination: [_] [_] [_]
Clearing and Settlement: [_] [_] [_]
Business Day Convention: [_] [_] [_]
Estimated total expenses [_] [_] [_]
related to admission to
trading:
LOAN NOTE SUPPORTING SERIES
Designation for the purposes Series 200[_]-[_]
of the Security Trust Deed:
Issuance Date: [__] [__] [__]
Initial Principal Amount: [__] [__] [__]
Loan Note First Interest Payment Date: [__] [__] [__]
Loan Note Interest Payment Date: [__] [__] [__]
Loan Note Interest Period: [__] [__] [__]
Required Reserve Amount: [__] [__] [__]
Series Scheduled Redemption Date: [__] [__] [__]
Series Termination Date: [__] [__] [__]
Additional Early Redemption Events: [__] [__] [__]
Listing: [__] [__] [__]
Initial Investor Interest: [__] [__] [__]
Class A Initial Investor Interest: [__] [__] [__]
Class B Initial Investor Interest: [__] [__] [__]
Class C Initial Investor Interest: [__] [__] [__]
SERIES INVESTOR INTEREST SUPPORTING LOAN NOTE
Designation for the purposes Series 200[__]-[__]
of the Receivables Trust Deed Supplement:
Issuance Date: [__] [__] [__]
Initial Principal Amount: [__] [__] [__]
First Payment Date: [__] [__] [__]
Class A LN Rate: [__] [__] [__]
Class B LN Rate: [__] [__] [__]
Class C LN Rate: [__] [__] [__]
Series Scheduled Redemption Date: [__] [__] [__]
Controlled Deposit Amount: [__] [__] [__]
Series Termination Date: [__] [__] [__]
Additional Early Redemption Events: [__] [__] [__]
Series Initial Investor Interest: [__] [__] [__]
Controlled Accumulation Period Commencement Date: [__] [__] [__]
SPREAD ACCOUNT PERCENTAGE
QUARTERLY
PERCENTAGE EXCESS SPREAD SPREAD ACCOUNT PERCENTAGE
------------------------ -------------------------
on a given date is: on same date will be:
o above [__] per cent. [__] per cent.
o above [__] per cent. but equal to [__] per cent.
or below [__] per cent.
o above [__] per cent. but equal to [__] per cent.
or below [__] per cent
o above [__] per cent. but equal to [__] per cent.
or below [__] per cent.
o above [__] per cent. but equal to [__] per cent.
or below [__] per cent.
o above [__] per cent. but equal to [__] per cent.
or below [__] per cent.
o equal to or below [__] per cent. [__] per cent.
[Supplemental information relating to additional Dealers and relevant
disclosure]
[Supplemental information relating to plan of distribution]
Dealers Aggregate Amount
---------------------- ----------------
[__] [__] [__] [__]
[__] [__] [__] [__]
Total: $___________
Net Proceeds: [$][__] [$][__] [$][__]
Dealer Concession: Not in excess of [__]% of the Principal Amount of these
Series 200[__]-[__]
Gross Proceeds: Notes
Estimate of Total Fees
and Commissions:
[Supplemental information for Disclosure Package]
SCHEDULE 8
DRAFT PROSPECTUS SUPPLEMENT/FINAL TERMS
SCHEDULE 9
DRAFT BASE PROSPECTUS
SIGNATURES
The Issuer
TURQUOISE CARD BACKED SECURITIES PLC
By:
---------------------------------
HSBC
HSBC BANK PLC
By:
---------------------------------
Loan Note Issuer No.1
TURQUOISE FUNDING 1 LIMITED
By:
---------------------------------
The Receivables Trustee
TURQUOISE RECEIVABLES TRUSTEE LIMITED
By:
---------------------------------
The Arranger and a Dealer
HSBC BANK PLC
By:
---------------------------------
EXECUTION PAGE
RECEIVABLES TRUSTEE
EXECUTED as a Deed by )
TURQUOISE RECEIVABLES )
TRUSTEE LIMITED )
)
HSBC
EXECUTED as a Deed )
)
By ▇▇▇▇▇▇▇ ▇▇▇▇ )
acting as attorney )
for and on behalf of )
HSBC BANK PLC )
in the presence of: )
Signature of witness:
Name of witness:
Address:
Occupation:
LOAN NOTE ISSUER No.1
EXECUTED as a Deed by )
TURQUOISE FUNDING )
1 LIMITED )
)
ISSUER
EXECUTED as a Deed by )
TURQUOISE CARD BACKED )
SECURITIES PLC )
ARRANGER AND DEALER
EXECUTED as a Deed )
)
By ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ )
acting as attorney )
for and on behalf of )
HSBC BANK PLC )
in the presence of: )
Signature of witness:
Name of witness:
Address:
Occupation: