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CLIFFORD CHANCE LLP
EXECUTION VERSION
DATED 24 JUNE 2015
NEWDAY FUNDING RECEIVABLES TRUSTEE LTD
AS THE RECEIVABLES TRUSTEE
AND
HSBC BANK PLC
AS RECEIVABLES TRUSTEE ACCOUNT BANK
AND
NEWDAY CARDS LTD.
AS SERVICER
RECEIVABLES TRUSTEE ACCOUNT
BANK AGREEMENT
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CONTENTS
Clause Page
1. Definitions and Common Terms ....................................................................................... 1
2. Appointment ...................................................................................................................... 4
3. Establishment of Receivables Trustee Collection Account and Receivables Trustee
Investment Account ........................................................................................................... 4
4. The Trust Accounts ........................................................................................................... 4
5. HSBC's Electronic Banking Platform ............................................................................... 7
6. The Bank Mandate ............................................................................................................ 7
7. Acknowledgement by the Receivables Trustee Account Bank ......................................... 7
8. Receivables Trustee Account Bank ................................................................................... 8
9. Confirmation and Indemnity ........................................................................................... 11
10. Representations and Warranties ...................................................................................... 12
11. Personal Data and Sensitive Data .................................................................................... 12
12. Change of Receivables Trustee, Receivables Trustee Account Bank or Servicer .......... 13
13. Costs ................................................................................................................................ 15
Schedule 1 Form of Bank Mandate ......................................................................................... 17
Schedule 2 Form of Payment Instruction................................................................................. 20
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THIS RECEIVABLES TRUSTEE ACCOUNT BANK AGREEMENT this
("Agreement") is made on 24 June 2015
BETWEEN:
(1) NEWDAY FUNDING RECEIVABLES TRUSTEE LTD, a private limited
company incorporated under the laws of Jersey with registered number 118267 and
whose registered office is at 47 Esplanade, St Helier, Jersey JE1 0BD, Channel
Islands (as trustee of the Receivables Trust, the "Receivables Trustee");
(2) HSBC BANK PLC, acting through its office at 8 Canada Square, London E14 5HQ,
United Kingdom with registered number 00014259 (in its capacity as the
"Receivables Trustee Account Bank", which expression shall include its successors
as the Receivables Trustee Account Bank pursuant to this Agreement); and
(3) NEWDAY CARDS LTD, a private limited company incorporated under the laws of
England and Wales with registered number 04134880 and whose registered office is
at Two Pancras Square, London N1C 4AG, United Kingdom (in its capacity as the
"Servicer", which expression shall include its successors as the Servicer pursuant to
the Receivables Trust Deed and Servicing Agreement),
(each, a "Party").
WHEREAS:
(A) The Transferor has acquired, and will from time to time acquire, the benefit of credit
card and charge card receivables originated within the United Kingdom from
NewDay Ltd, and the Transferor may, from time to time, assign to the Receivables
Trustee as trustee of the Receivables Trust, the benefit of such receivables.
(B) The Receivables Trustee Account Bank has agreed to operate the Trust Accounts (as
defined below) maintained with it by the Receivables Trustee, on the terms and
subject to the conditions contained in this Agreement.
IT IS HEREBY AGREED AS FOLLOWS:
1. DEFINITIONS AND COMMON TERMS
1.1 Definitions
Unless otherwise defined in this Agreement or the context requires otherwise, words
and expressions used in this Agreement (including the recitals hereto) shall have the
meanings and constructions ascribed to them in the master definitions schedule set out
in schedule 1 (Master Definitions Schedule) to the master framework agreement dated
on or about the date hereof, as amended and/or restated and/or supplemented from
time to time, between, inter alios, the Parties (the "Master Framework
Agreement"). In addition, in this Agreement:
"Authorised Representative" means, in respect of a Trust Account, a person
identified as an authorised signatory pursuant to the Bank Mandate.
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"Bank Mandate" means, in relation to each Trust Account, the resolutions,
instructions, Authorised Representatives and Call-back Contacts relating to such Trust
Account substantially in the form set out in Schedule 1 (Form of Bank Mandate), as
they may be amended from time to time, provided that, where any such amendment
relates to the Authorised Representatives or Call-back Contacts, such amendment
shall only be effective upon the expiry of five Business Days' written notice to the
Receivables Trustee Account Bank (or such shorter notice period as the Receivables
Trustee Account Bank may agree in its absolute discretion).
"Call-back Contact" means, in respect of a Trust Account, a person identified as a
call-back contact pursuant to the Bank Mandate.
"HSBCnet" means the internet/electronic based banking platform provided by the
Receivables Trustee Account Bank.
"HSBC Group" means collectively and individually, HSBC Holdings plc, its
affiliates, subsidiaries, associated entities and any of their branches and offices, and
"any member of the HSBC Group" has the same meaning.
"Client Money Rules" means the FCA Rules in relation to client money from time to
time.
"Electronic means" means transfers by way of the Clearing House Automated
Payment System or such other system(s) as may replace it.
"FCA" means the Financial Conduct Authority, or any successor or replacement
regulator.
"FCA Rules" means the rules established by the FCA in the FCA's Handbook of rules
and guidance from time to time.
"Force Majeure Event" means any event (including but not limited to an act of God,
fire, epidemic, explosion, floods, earthquakes, typhoons; riot, civil commotion or
unrest, insurrection, terrorism, war, strikes or lockouts; nationalisation, expropriation,
redenomination or other related governmental actions; any law, order or regulation of
a governmental, supranational or regulatory body; regulation of the banking or
securities industry including changes in market rules, currency restrictions,
devaluations or fluctuations; market conditions affecting the execution or settlement
of transactions or the value of assets; and breakdown, failure or malfunction of any
telecommunications, computer services or systems, or other cause) beyond the control
of any Party which restricts or prohibits the performance of the obligations of such
Party contemplated by this Agreement.
"Instruction" means any Payment Instruction or any other instruction (for the
avoidance of doubt, including any instruction made pursuant to HSBCnet),
communication or direction which the Receivables Trustee Account Bank is entitled
to rely on for the purposes of this Agreement.
"KYC Procedures" means the Receivables Trustee Account Bank's procedures
relating to the verification of the identity (including, if applicable, beneficial
ownership) and business of its potential and existing clients.
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"Member State" means a member state of the European Union.
"Payment Instruction" means a payment instruction substantially in the form set out
in Schedule 2 (Form of Payment Instruction) duly signed by two Authorised
Representatives.
"Relevant Transfer Date" means, in respect of a demand for payment:
(a) if such demand is made no later than two Business Days prior to a
Determination Date, the Transfer Date immediately following that
Determination Date; and
(b) if such demand is made less than two Business Days prior to a Determination
Date, the Transfer Date immediately following the next succeeding
Determination Date.
"Services" means any electronic banking or related services supplied via the System
and ancillary services that the Receivables Trustee Account Bank provides, procures
or makes available from time to time, as further described in the HSBCnet customer
agreement.
"System" means HSBC Group's HSBCnet system (including any Software) accessed
via the portal at 'www.hsbc.com' or such other access point or means as the
Receivables Trustee Account Bank may notify from time to time.
"Trust Accounts" means, together, each of:
(a) the account entitled "Receivables Trustee Collection Account" held in the
name of the Receivables Trustee with the Receivables Trustee Account Bank
having account number 76181298 and sort code 40-05-15 or any successor or
replacement to such account at the Receivables Trustee Account Bank or
another Qualified Institution; and
(b) the account entitled "Receivables Trustee Investment Account" held in the
name of the Receivables Trustee with the Receivables Trustee Account Bank
having account number 76181306 and sort code 40-05-15 or any successor or
replacement to such account at the Receivables Trustee Account Bank or
another Qualified Institution; and
(c) any "Additional Trust Account" opened in the name of the Receivables
Trustee as specified in clause 6.1(c) (Additional Trust Accounts) of the
Receivables Trust Deed and Servicing Agreement with the Receivables
Trustee Account Bank, including but not limited to each Additional Trust
Account opened in the name of the Receivables Trustee for the benefit of the
Loan Note Issuer, a Series or any Class within a Series, pursuant to the
Relevant Documents, or any successor or replacement to such account at the
Receivables Trustee Account Bank or another Qualified Institution.
1.2 Incorporation of Common Terms
Except as provided below, the Common Terms apply to this Agreement and shall be
binding on the Parties as if set out in full in this Agreement.
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1.3 Conflict with Common Terms
If there is any conflict between the provisions of the Common Terms and the
provisions of this Agreement, the provisions of this Agreement shall prevail, save for
where any provision of this Agreement relates to VAT, in which case the provisions
of the Common Terms shall prevail and provided that the provisions of paragraph 6
(Limited Recourse; Non-Petition) of the Common Terms shall prevail at all times.
1.4 DBRS
In respect of any reference to a rating downgrade by DBRS, a party will be treated as
having being downgraded by DBRS if: (i) such party is or has been rated by DBRS
and such rating has been lowered or withdrawn; or (ii) such party is not rated by
DBRS but ceases to have a DBRS Equivalent Rating.
2. APPOINTMENT
The Receivables Trustee designates and appoints the Receivables Trustee Account
Bank to act as its account bank and the Receivables Trustee Account Bank accepts
such designation and appointment in accordance with the terms and conditions of this
Agreement.
3. ESTABLISHMENT OF RECEIVABLES TRUSTEE COLLECTION
ACCOUNT AND RECEIVABLES TRUSTEE INVESTMENT ACCOUNT
3.1 The Receivables Trustee Account Bank confirms that it has opened the Receivables
Trustee Collection Account and the Receivables Trustee Investment Account in the
name of the Receivables Trustee on the terms of this Agreement.
3.2 The Receivables Trustee Account Bank shall hold funds standing to the credit of any
Trust Account as banker and not as trustee and as a result such money will not be
subject to the Client Money Rules.
3.3 The Receivables Trustee undertakes to the Receivables Trustee Account Bank that it
will provide to the Receivables Trustee Account Bank all necessary documentation
and other necessary information required by the Receivables Trustee Account Bank
from time to time to comply with all Requirements of Law or Regulatory Direction in
relation to any Trust Account upon request by the Receivables Trustee Account Bank,
acting reasonably.
3.4 The Receivables Trustee undertakes that any Instructions it, or the Servicer on its
behalf, gives in connection with this Agreement will be given only in accordance with
terms of this Agreement.
4. THE TRUST ACCOUNTS
4.1 The Receivables Trustee Account Bank shall comply with any Instruction of the
Receivables Trustee, or the Servicer on its behalf, to debit any Trust Account
provided that such Instruction:
(a) is given:
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(i) where the Receivables Trustee, or the Servicer on its behalf, is able to
give such Instruction by HSBCnet, in accordance with the standard
practices, policies and procedures for HSBCnet most recently notified
to the Receivables Trustee as at the date of such Instruction; or
(ii) where, for whatever reason, the Receivables Trustee, or the Servicer on
its behalf, is not able to give such Instruction by HSBCnet, by
submitting a Payment Instruction to the Receivables Trustee Account
Bank by fax in accordance with paragraph 16.1.3 (Communications in
Writing) of the Common Terms; or
(b) is to pay, release, transfer, liquidate or otherwise deal with any Trust Account
in accordance with the terms of an order, judgment, award, decision or decree
of a court of competent jurisdiction determining the entitlement of the
Receivables Trustee to amounts standing to the credit of any Trust Account.
Notwithstanding the provisions of this Clause 4.1, amounts shall only be withdrawn
from a Trust Account to the extent that such withdrawal does not cause such Trust
Account to become overdrawn and furthermore credits shall only be made to a Trust
Account when the Receivables Trustee Account Bank shall have received cleared
funds.
4.2 The Receivables Trustee acknowledges and agrees that:
(a) the Receivables Trustee Account Bank may rely conclusively and act upon
any Instructions received in accordance with Clause 4.1 or otherwise as agreed
by all of the Parties and, if it acts in good faith on such Instructions, such
Instructions shall be binding on the Receivables Trustee and the Receivables
Trustee Account Bank shall not be liable for so acting;
(b) the Receivables Trustee Account Bank is not responsible for any errors or
omissions in any Instruction made by the Receivables Trustee, or the Servicer
on its behalf, or resulting from fraud or the duplication of any Instruction by
the Receivables Trustee or the Servicer on its behalf;
(c) notwithstanding any other provision hereof, the Receivables Trustee Account
Bank shall have the right:
(i) to refuse to act on any Instruction where it reasonably doubts its
contents, authorisation, origination or compliance with this Agreement
and will promptly notify the Receivables Trustee and the Servicer of
its decision; and
(ii) prior to acting upon any Instruction received in accordance with Clause
4.1(a)(ii), to validate the authenticity of any such Instruction by
telephoning a Call-back Contact;
(d) the Receivables Trustee Account Bank may rely upon the confirmations or
responses of anyone purporting to be the Call-back Contact in answering the
telephone call-back of the Receivables Trustee Account Bank and it shall
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assume all risks and losses (if any) resulting from such confirmations or
responses;
(e) if the Receivables Trustee, or the Servicer on its behalf, informs the
Receivables Trustee Account Bank that it wishes to recall, cancel or amend an
Instruction (an "Amendment Instruction"), the Receivables Trustee Account
Bank will use reasonable efforts to comply with such Amendment Instruction,
to the extent it is practicable to do so, before the release or transfer of any
funds from, or other dealing with, the Trust Accounts. Subject to Clause
4.2(c)(i), any Amendment Instruction acted upon by the Receivables Trustee
Account Bank shall be binding on the Receivables Trustee; and
(f) it is fully aware of and agrees to accept the risks of error, security and privacy
issues and fraudulent activities associated with transmitting Instructions
through facsimile or any other means requiring manual intervention.
4.3 The Receivables Trustee Account Bank agrees that if instructed pursuant to Clause
4.1 to make any payment, and provided that such instruction is given by the
Receivables Trustee, or the Servicer on its behalf, in sufficient time to allow the
Receivables Trustee Account Bank to transfer amounts on such date, it will do so
prior to close of business on the Business Day on which such direction is received (or
such other Business Day as the direction may require) and for value that day (and for
these purposes, the deemed receipt provisions set out in paragraph 16.2 (Deemed
Delivery) of the Common Terms shall not apply), provided that if any direction is
received by the Receivables Trustee Account Bank later than the cut-off time
indicated in the table below, the Receivables Trustee Account Bank shall make such
payment at the commencement of business on the following Business Day for value
that day:
Type of Transfer
Internal (i.e. to another
account at any branch of
the Receivables Trustee
Account Bank)
External
Method of Instruction Cut-off Time
Payment Instruction 12:00 noon on any
Business Day
12:00 noon on any
Business Day
4.4 The Receivables Trustee Account Bank shall be under no obligation to debit any
amounts from any Trust Account if it is prohibited from doing so by a Requirement of
Law or prohibited from doing so by the terms of any order, judgment, award, decision
or decree made by a court or tribunal of competent jurisdiction.
4.5 The Receivables Trustee agrees that the Receivables Trustee Account Bank has no
responsibility whatsoever to ensure that amounts are deposited into the Trust
Accounts and shall have no obligation under this Agreement for any amounts other
than those amounts which from time to time are in fact deposited and credited to the
Trust Accounts.
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4.6 The charges of the Receivables Trustee Account Bank (if any) for the operation of the
Trust Accounts shall not be debited to any Trust Account but shall be payable by the
Receivables Trustee (by utilising trust property from the Receivables Trust for such
purpose in accordance with the priorities of payments set out in the Receivables Trust
Deed and Servicing Agreement and any Supplement) within 50 days of receipt of a
written invoice and shall be charged by the Receivables Trustee Account Bank to the
Receivables Trustee as per the Receivables Trustee Account Bank's standard practices,
policies and procedures and at a rate separately agreed with the Receivables Trustee.
The Receivables Trustee Account Bank hereby acknowledges that it will have no
recourse against any funds standing to the credit of any Trust Account or against any
Party other than the Receivables Trustee in respect of the said charges.
4.7 The Trust Accounts will bear interest as agreed with the Receivables Trustee Account
Bank from time to time, subject to a minimum of zero, which will be credited to the
Trust Accounts in accordance with the Receivables Trustee Account Bank's standard
practices, policies and procedures.
Where interest which has accrued but not yet been credited to the Trust Accounts is
required to be released in accordance with an Instruction delivered under Clause 4.1,
such interest shall be paid to the account specified in such Instruction within five
Business Days of the payment date specified in such Instruction.
5. HSBC'S ELECTRONIC BANKING PLATFORM
5.1 This Agreement is subject to the HSBCnet customer agreement between the
Receivables Trustee Account Bank and the Receivables Trustee, except that the
HSBCnet customer agreement shall apply only with respect to the System or Services.
5.2 This Agreement is subject to the fax indemnity, except that the fax indemnity shall
apply only where HSBCnet is unavailable and instructions are delivered by the
Receivables Trustee, or the Servicer on its behalf, to the Receivables Trustee Account
Bank by fax. To the extent that any provision of the fax indemnity conflicts with any
provision of this Agreement, the provisions of this Agreement shall prevail.
6. THE BANK MANDATE
The Receivables Trustee has agreed to deliver the Bank Mandate to the Receivables
Trustee Account Bank and the Receivables Trustee Account Bank hereby confirms to
the Receivables Trustee:
(a) receipt by it of the Bank Mandate from the Receivables Trustee; and
(b) that such Bank Mandate is operative and supersedes any previous mandates or
arrangements relating to the Trust Accounts.
7. ACKNOWLEDGEMENT BY THE RECEIVABLES TRUSTEE ACCOUNT
BANK
7.1 Notwithstanding anything to the contrary in the Bank Mandate, the Receivables
Trustee Account Bank hereby:
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(a) acknowledges that each of the Trust Accounts are trust accounts of the
Receivables Trustee, funds standing to the credit of which are held by the
Receivables Trustee on trust for certain beneficiaries and accordingly the
operation of the Trust Accounts will not be affected by the winding up or
administration of the Receivables Trustee or by any petition therefor except to
the extent required by law or the directions of any competent court; and
(b) waives any right it has or may hereafter acquire to combine, consolidate or
merge any of the Trust Accounts with any other account of the Receivables
Trustee or any other person or any liabilities of the Receivables Trustee or any
other person to the Receivables Trustee Account Bank and agrees that it may
not set off, transfer, combine or withhold payment of any sum standing to the
credit of any of the Trust Accounts in or towards or conditionally upon
satisfaction of any liabilities to it of the Receivables Trustee or any other
person.
7.2 Until the Receivables Trustee Account Bank shall have been notified in writing by the
Receivables Trustee that none of the Associated Debt is outstanding, the Receivables
Trustee Account Bank shall provide each of the Servicer and the Receivables Trustee
(in each case, or any successor thereto in such capacity of which the Receivables
Trustee Account Bank has been notified in writing) with a monthly statement in
respect of each Trust Account before each Transfer Date or an ad hoc statement upon
request from time to time, and in the latter case such statement shall be provided as
soon as reasonably practicable after receipt of a request for a statement.
7.3 The Receivables Trustee Account Bank represents that, as at the date of this
Agreement, it is a Qualified Institution.
8. RECEIVABLES TRUSTEE ACCOUNT BANK
In consideration for the Receivables Trustee Account Bank agreeing to act hereunder
it is further agreed by the Receivables Trustee that:
(a) the Receivables Trustee Account Bank shall not be under any duty to give
amounts standing to the credit of the Trust Accounts held by it hereunder any
greater degree of care than it gives to amounts held for its general banking
customers;
(b) this Agreement expressly sets forth all duties of the Receivables Trustee
Account Bank. The Receivables Trustee Account Bank shall not be bound by
(and shall be deemed not to have notice of) the provisions of any agreement
entered into by or involving the Receivables Trustee except this Agreement
and the Master Framework Agreement and any Instruction;
(c) the Receivables Trustee Account Bank is under no duty to ensure that funds
withdrawn from the Trust Accounts are actually applied for the purpose for
which they were withdrawn or that any Instruction is accurate, correct or in
accordance with the terms of any agreement or arrangement;
(d) neither the Receivables Trustee Account Bank nor any of its officers,
employees or agents shall be required to make any payment or distribution to
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the extent that amounts standing to the relevant Trust Account are insufficient
and shall incur no liability whatsoever from any non-payment or non-
distribution in such circumstances;
(e) the Receivables Trustee agrees to the call-back arrangement and the use of any
form of telephonic or electronic monitoring or recording by the Receivables
Trustee Account Bank according to the Receivables Trustee Account Bank's
standard operating procedures or as the Receivables Trustee Account Bank
deems appropriate for security and service purposes;
(f) neither the Receivables Trustee Account Bank nor any of its officers,
employees or agents shall be liable to any person or entity for any loss,
liability, claim, debts, action, damages or expenses arising out of or in
connection with its performance of or its failure to perform any of its
obligations under this Agreement save as are caused by its own wilful default,
gross negligence or fraud;
(g) the Receivables Trustee Account Bank shall not be responsible for any loss or
damage, or failure to comply or delay in complying with any duty or
obligation, under or pursuant to this Agreement arising as a direct or indirect
result of any Force Majeure Event or any event where, in the opinion of the
Receivables Trustee Account Bank acting reasonably and having consulted
with counsel, performance of any duty or obligation under or pursuant to this
Agreement would or might be illegal or would or might result in the
Receivables Trustee Account Bank being in breach of any law, rule or
regulation or any decree, order, award, decision or judgment of any court or
any practice, direction, notice, announcement or similar action (whether or not
having the force of law but with which the Receivables Trustee Account Bank
would normally comply) of any relevant government, government agency,
regulatory authority or stock exchange to which the Receivables Trustee
Account Bank is subject (including, without limitation, those of (i) the United
States of America or any jurisdiction forming a part of it and (ii) England and
Wales) and may, without liability, do anything which is, in its opinion (acting
reasonably), necessary to comply with any such law, rule or regulation;
(h) without prejudice to Clause 8(c), the Receivables Trustee Account Bank shall
not be obliged to make any payment or otherwise to act on any Instruction
notified to it under this Agreement if it is unable to verify any signature
pursuant to any Payment Instruction against the specimen signature provided
for the relevant Authorised Representative;
(i) in the event of:
(i) conflicting Instructions being made in connection with the Trust
Accounts; or
(ii) the Receivables Trustee Account Bank in good faith concluding that its
duties hereunder are unclear in a material respect,
the Receivables Trustee Account Bank shall be entitled in its sole discretion to
refuse to comply with any Instructions either:
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(A) for so long as such conflicting Instructions continue; or
(B) until the Receivables Trustee Account Bank's duties have been
clarified to the satisfaction of the Receivables Trustee Account
Bank (acting reasonably);
(j) other than in respect of any purely factual reference to the Receivables Trustee
Account Bank's role under this Agreement, no printed or other matter in any
language (including without limitation prospectuses, notices, reports and
promotional material) which mentions the name of the Receivables Trustee
Account Bank or the rights, powers, or duties of the Receivables Trustee
Account Bank under this Agreement shall be publicly issued by the
Receivables Trustee or on its behalf unless the Receivables Trustee Account
Bank shall first have given its express written consent thereto, except pursuant
to any prospectus, offering memorandum or listing document in respect of any
Notes (and any drafts of any of the foregoing or other materials used for the
purpose of marketing any Notes) and as required pursuant to any Requirement
of Law or the rules of any relevant stock exchange;
(k) the Receivables Trustee Account Bank shall be entitled to rely upon any order,
judgment, award, decision, decree, certification, demand, notice, or other
written instrument (including any Instruction or any requirement and/or
request for information delivered by a person or authority) delivered to it
hereunder without being required to determine its authenticity or the
correctness of any fact stated therein or the validity of the service thereof. The
Receivables Trustee Account Bank may act in reliance upon any instrument or
signature believed by it to be genuine and may assume that any person
purporting to give receipt or advice or make any statement or execute any
document in connection with the provisions hereof has been duly authorised to
do so;
(l) the Receivables Trustee Account Bank may consult lawyers (or other
appropriate professional advisers) over any question as to the provisions of
this Agreement or its duties hereunder and hereby agrees to disclose a
summary of the advice on which it intends to rely, produced by such lawyers
or professional advisers, to the Receivable Trustee upon request. Without
prejudice to Clause 9.1 or 9.2 (Confirmation and Indemnity), the Receivables
Trustee Account Bank shall not be liable for any action taken or omitted in
accordance with such advice (in the absence of such advice containing a
material manifest error). The Receivables Trustee shall indemnify the
Receivables Trustee Account Bank (by utilising trust property from the
Receivables Trust for such purpose in accordance with the priorities of
payment set out in the Receivables Trust Deed and Servicing Agreement and
any Supplement) for all properly incurred fees and disbursements of
professional advisers (including lawyers) within 50 days of receipt of a written
invoice;
(m) (i) except as provided hereunder or under any other Transaction
Document to which the Receivables Trustee Account Bank is a party,
the obligations and duties of the Receivables Trustee Account Bank are
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binding only on the Receivables Trustee Account Bank and are not
obligations or duties of any other member of the HSBC Group; and
(ii) the rights of the Receivables Trustee with respect to the Receivables
Trustee Account Bank extend only to the Receivables Trustee Account
Bank and, except to the extent required under any applicable law, do
not extend to any other member of the HSBC Group;
(n) if the Receivables Trustee Account Bank agrees to carry on an activity of the
kind specified by article 14 (dealing in investments as principal), 21 (dealing
in investments as agent) or 40 (safeguarding and administering investments)
of the Financial Services and Markets Act 2000 (Regulated Activities) Order
2001, it will do so in accordance with its standard terms and conditions
applying to the custody of investments as are in force for the time being
(receipt of which is acknowledged by the Receivables Trustee and the Security
Trustee), which shall have effect subject to any contrary provisions in this
Agreement;
(o) the Receivables Trustee Account Bank may assume that no Enforcement
Notice has been given and that no party to this Agreement is in breach of or in
default of its obligations hereunder, unless it has actual notice to the contrary;
and
(p) the Receivables Trustee Account Bank shall not be bound to enquire as to the
occurrence or otherwise of a Loan Note Event of Default, the service of a
Loan Note Enforcement Notice or the performance by any party to this
Agreement or the other Transaction Documents of its obligations hereunder or
thereunder.
9. CONFIRMATION AND INDEMNITY
9.1 The Receivables Trustee Account Bank in making payment from the Trust Accounts,
in accordance with this Agreement, shall be entitled to act as directed by the
Receivables Trustee, or the Servicer on its behalf, pursuant to Clause 4.1 (The Trust
Accounts) and to rely as to the amount of any such payment on the confirmation of the
Receivables Trustee in accordance with the Bank Mandate (except that, in the case of
transfer of funds by way of electronic means, such confirmation shall conclusively be
deemed to be given on the verification and authorisation of such transfer by way of
the normal banking practice for such transfers) and the Receivables Trustee Account
Bank shall have no liability for any loss, injury or consequence suffered or incurred
by the Receivables Trustee for any action taken as a consequence of relying on any
such confirmation except in the case of the Receivables Trustee Account Bank's
wilful default, gross negligence or fraud.
9.2 The Receivables Trustee shall (by utilising trust property from the Receivables Trust
for such purpose in accordance with the priorities of payments set out in the
Receivables Trust Deed and Servicing Agreement and any Supplement), on the
Relevant Transfer Date, indemnify the Receivables Trustee Account Bank against any
loss, cost, damage, charge or expense incurred by the Receivables Trustee Account
Bank in complying with any direction of the Receivables Trustee, or the Servicer on
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its behalf, delivered pursuant to and in accordance with this Agreement, save that this
indemnity shall not extend to:
(a) the charges of the Receivables Trustee Account Bank (if any) for the operation
of the Trust Accounts; and
(b) any loss, cost, damage, charge or expense arising from the Receivables
Trustee Account Bank's own wilful default, gross negligence or fraud.
This indemnity shall survive the termination or expiry of this Agreement.
9.3 Under no circumstances will the Receivables Trustee Account Bank be liable to any
Party or any other person for any indirect, incidental or consequential loss or damage
(being, inter alia, loss of business, goodwill or opportunity or profit) even if advised
of such loss or damage.
10. REPRESENTATIONS AND WARRANTIES
10.1 The Receivables Trustee represents and warrants to the Receivables Trustee Account
Bank as at the date of this Agreement that:
(a) it is duly incorporated and validly existing under the laws of its jurisdiction of
incorporation, and is not subject to any insolvency procedure;
(b) it has the power to enter into and perform its obligations under this Agreement
which constitute legally binding and enforceable obligations;
(c) this Agreement and the underlying transaction to which it relates will not
conflict in any material respect with:
(i) any applicable law or regulation or any official or judicial order or
control to which it is subject;
(ii) its constitutional documents; or
(iii) any agreement to which it is a party or which is binding upon it or its
assets; and
(d) all governmental and other consents and/or approvals that are required to have
been obtained by it with respect to this Agreement or payments under this
Agreement including but not limited to all exchange control approvals from a
central bank or other similar authority (if applicable), have been obtained and
are in full force and effect and all conditions of any such consents and/or
approvals have been (or as applicable will be) complied with.
11. PERSONAL DATA AND SENSITIVE DATA
11.1 The Receivables Trustee undertakes not to supply to the Receivables Trustee Account
Bank any personal data or sensitive data, whether relating to such party, its personnel,
customers or other data subjects, except to the extent that the Receivables Trustee is
required to provide such information in accordance with the terms of this Agreement
or in order to comply with requests for information made by the Receivables Trustee
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Account Bank pursuant to its KYC Procedures. The Receivables Trustee Account
Bank will process such information for the purpose of carrying out its KYC
Procedures and will keep it secure and confidential.
11.2 For the purposes of Clause 11.1, "data subject", "personal data" and "sensitive
data" each have the meaning given to them in the EU Directive 95/46/EC as
implemented by the relevant Member State.
12. CHANGE OF RECEIVABLES TRUSTEE, RECEIVABLES TRUSTEE
ACCOUNT BANK OR SERVICER
12.1 The Receivables Trustee Account Bank shall give not less than 4 weeks' notice (the
"Receivables Trustee Account Bank's Termination Notice") to the Receivables
Trustee and the Servicer of any termination of the banking arrangements granted to
the Receivables Trustee, provided that the Receivables Trustee Account Bank shall
continue to perform all its obligations under this Agreement until the Receivables
Trustee Account Bank's rights and obligations have been vested in a new Receivables
Trustee Account Bank in accordance with Clause 12.3 or 12.4. In the event of any
such termination the Receivables Trustee Account Bank shall take reasonable steps
(for a period of not less than three months after such termination) to assist the other
Parties to effect an orderly transition of the Receivables Trustee's banking
arrangements to the new Receivables Trustee Account Bank. The Receivables Trustee
Account Bank shall meet its own costs in effecting such transfer but the Receivables
Trustee shall meet any other costs in respect thereof, which costs shall be payable on
the Relevant Distribution Date by utilising trust property from the Receivables Trust
for such purpose in accordance with the priorities of payments set out in the
Receivables Trust Deed and Servicing Agreement and any Supplement.
12.2 The Receivables Trustee may terminate the appointment of the Receivables Trustee
Account Bank and the banking arrangements pursuant to this Agreement:
(a) by giving not less than 90 days' written notice; or
(b) following the occurrence of an Insolvency Event in respect of the Receivables
Trustee Account Bank or in the event that the Receivables Trustee Account
Bank ceases to be a Qualified Institution, immediately on written notice,
(the "Receivables Trustee's Termination Notice") to the Receivables Trustee
Account Bank and the Servicer, provided that the Receivables Trustee Account Bank
shall continue to perform all its obligations under this Agreement until the
Receivables Trustee Account Bank's rights and obligations have been vested in a new
Receivables Trustee Account Bank in accordance with Clause 12.3 or 12.4 and
provided that the new Receivables Trustee Account Bank enters into an account
bank agreement in substantially the same terms as this Agreement and provided
further that the Servicer confirms in writing that, in its opinion, the replacement of the
Receivables Trustee Account Bank will not cause any reduction or withdrawal of any
Rating Agency's current rating of the relevant Associated Debt. In the event of any
such termination the Receivables Trustee Account Bank shall take reasonable steps
(for a period of not less than three months after such termination) to assist the other
Parties to effect an orderly transition of the Receivables Trustee's banking
arrangements to the new Receivables Trustee Account Bank.
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12.3 Following:
(a) the receipt by the Receivables Trustee of the Receivables Trustee Account
Bank's Termination Notice; or
(b) the distribution by the Receivables Trustee of the Receivables Trustee's
Termination Notice,
the Receivables Trustee shall, as soon as reasonably practicable, appoint a Qualified
Institution upon consultation with the Servicer as a successor Receivables Trustee
Account Bank in respect of the Trust Accounts.
12.4 If by the end of the notice period in Clause 12.1 or 12.2(a) a new Receivables Trustee
Account Bank has not been appointed in accordance with Clause 12.3, the
Receivables Trustee Account Bank may appoint a successor Receivables Trustee
Account Bank itself, provided that such successor Receivables Trustee Account
Bank must be a Qualified Institution.
12.5 In the event that:
(a) the Receivables Trustee Account Bank ceases to be a Qualified Institution; or
(b) an Insolvency Event occurs in respect of the Receivables Trustee Account
Bank,
the Receivables Trustee Account Bank shall as soon as reasonably practicable give
notice of that fact to the Receivables Trustee and the Servicer. As soon as practicable
thereafter, and in any event within 30 days (in respect of a downgrade by Fitch or
DBRS) of such notice, or such longer period as may be agreed with the relevant
Rating Agencies as not leading to a downgrade of any outstanding Associated Debt,
the Receivables Trustee Account Bank or any successor shall, at the cost of the
Receivables Trustee Account Bank, transfer the closing credit balance of the Trust
Accounts, together with all interest accrued on such balances up to but not including
the date of transfer, to an appropriate successor account with a Qualified Institution,
appointed by the Receivables Trustee upon consultation with the Servicer. The
Receivables Trustee Account Bank shall meet its own costs in effecting such transfer
but the Receivables Trustee shall meet any other costs in respect thereof, which costs
shall be payable on the Relevant Distribution Date by utilising trust property from the
Receivables Trust for such purpose in accordance with the priorities of payments set
out in the Receivables Trust Deed and Servicing Agreement and any Supplement.
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12.6 If there is any change in the identity of the Servicer in accordance with the
Receivables Trust Deed and Servicing Agreement or the Receivables Trustee Account
Bank in accordance with this Agreement, the Parties shall execute such documents (in
the case of any document to be signed by the Servicer, in form and substance
satisfactory to it) and take such actions as the new Servicer or Receivables Trustee
Account Bank and the outgoing Servicer or Receivables Trustee Account Bank may
require for the purpose of vesting in the new Servicer or Receivables Trustee Account
Bank the rights and obligations of the outgoing Servicer or Receivables Trustee
Account Bank under this Agreement, and releasing the outgoing Servicer or
Receivables Trustee Account Bank from its future obligations under this Agreement.
13. COSTS
The Receivables Trustee agrees to pay (by utilising trust property from the
Receivables Trust for such purpose in accordance with the priorities of payments set
out in the Receivables Trust Deed and Servicing Agreement and any Supplement), on
the Relevant Transfer Date, the reasonable costs (including reasonable legal costs and
expenses) of the Receivables Trustee Account Bank in connection with the
negotiation of this Agreement and the establishment of the Trust Accounts and the
negotiation and execution of any further documents and the taking of any further
action to be executed or taken to give effect to this Agreement, save for any Taxes on
income, profits or gains of the Receivables Trustee Account Bank and any
recoverable VAT.
IN WITNESS WHEREOF this Agreement has been executed by or on behalf of the Parties
the day and year first above written.
EXECUTION PAGE FOR THE RECEIVABLES TRUSTEE ACCOUNT BANKAGREEMENT
The Receivables Trustee
Signed on behalf of )NEWDAY FUNDING RECEIVABLES )TRUSTEE LTD j ~ ~~~~~~, ~ (~,)
1/~ Vr
by SFM Directors (Jersey) Limited, as Director )
The Receivables Trustee Account Bank
Signed byHSBC BANK PLCby an authorised signatory
The Servicer
Signed for and on behalf ofNEWDAY CARDS LTDby a duly authorised signatory
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SCHEDULE 1
FORM OF BANK MANDATE
NEWDAY FUNDING RECEIVABLES TRUSTEE LTD
At a duly constituted meeting of the board of directors of NewDay Funding Receivables
Trustee Ltd (the "Company") held at 47 Esplanade, St Helier, Jersey JE1 0BD on [•] 2015.
IT WAS RESOLVED that:
1. The accounts set out below, each in the name of the Company held with HSBC Bank
plc (the "Receivables Trustee Account Bank") at its branch at 8 Canada Square,
London E14 5HQ, each be used as an account for the benefit of the Company in its
capacity as trustee of the Receivables Trust (together, the "Trust Accounts"). The
account numbers and the name of each of the Trust Accounts are as follows:
Name of Account Account Number Sort Code
Receivables Trustee Collection
Account
76181298 40-05-15
Receivables Trustee Investment
Account
76181306 40-05-15
2. In relation to the Trust Accounts, the Receivables Trustee Account Bank is hereby
authorised to honour and comply with all cheques, drafts, bills, payments by way of
the Clearing House Automated Payment System and orders expressed to be drawn,
accepted made or given and all instructions given in writing or by way of electronic
means (including, for the avoidance of doubt, by HSBCnet (as defined in the
Receivables Trustee Account Bank Agreement (as defined below)) in respect of the
Trust Accounts opened pursuant to the receivables trustee account bank agreement to
be entered into on or about 24 June 2015 between the Company, NewDay Cards Ltd
(the "Servicer") and the Receivables Trustee Account Bank (the "Receivables
Trustee Account Bank Agreement"), provided that any such cheques, drafts, bills,
payments by way of the Clearing House Automated Payment System and orders
expressed to be drawn, accepted, made or given and all instructions given in writing
or by way of electronic means (including, for the avoidance of doubt, by HSBCnet (as
defined in the Receivables Trustee Account Bank Agreement)) are signed by any of
the persons whose names and specimen signatures are set out in the schedule attached
to these minutes (which persons, for whom telephone numbers have also been
provided in the schedule attached to these minutes shall also be Call-back Contacts
(as defined in the Receivables Trustee Account Bank Agreement) for the Trust
Accounts)) or, in the case of instructions given by HSBCnet, given by the Company,
or the Servicer on its behalf, in accordance with the standard practices, policies and
procedures for HSBCnet most recently notified to the Receivables Trustee as at the
date of such Instruction.
3. The Receivables Trustee Account Bank be supplied with a list of names of directors,
the secretary and other officers and authorised signatories of the Company and the
Receivables Trustee Account Bank be authorised to act on any information given by a
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director or the secretary or any other officer or authorised signatory of the Company
as to any changes therein.
4. These resolutions be communicated to the Receivables Trustee Account Bank and
remain in force unless and until an amending resolution shall be passed by the
directors of the Company or a committee thereof and a copy thereof, certified by any
one of the directors or the secretary of the Company, shall be received by the
Receivables Trustee Account Bank.
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SCHEDULE
Name: Position Specimen signature Telephone number
1.
2.
3.
4.
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SCHEDULE 2
FORM OF PAYMENT INSTRUCTION
[N.B. If this Payment Instruction represents the final Payment Instruction then please
include the following wording:]
[The payment[s] contemplated by this Payment Instruction represent[s] the final payment to
be made from the [Receivables Trustee Collection Account]/[Receivables Trustee Investment
Account]. The [Receivables Trustee Collection Account]/[Receivables Trustee Investment
Account] is therefore to be closed as described below.]
HSBC Bank plc
8 Canada Square,
London E14 5HQ
For the attention of the Senior Manager
Fax: +44 (0)845 587 0429
[DATE]
Receivables Trustee Account Bank Agreement
We refer to the receivables trustee account bank agreement dated on or about 24 June 2015
between, inter alios, NewDay Funding Receivables Trustee Ltd and HSBC Bank plc (the
"Receivables Trustee Account Bank Agreement"). Words and expressions used in this
Payment Instruction shall have the same meanings as in the Receivables Trustee Account
Bank Agreement.
This Payment Instruction is being provided to you in accordance with clause 4.1(a)(ii) (The
Trust Accounts) of the Receivables Trustee Account Bank Agreement. You are instructed to
pay the following amount[s] from the [Receivables Trustee Collection Account]/[Receivables
Trustee Investment Account] numbered [•] to the account[s] specified below:
(a) [Correspondent Bank]
[SWIFT Code]/[ABA number (if US Dollars)]
(b) [Beneficiary Bank]
[SWIFT Code/[Sort Code/(if Sterling)]]
(c) [Account Name]
(d) [Account Number]
(e) [Reference, if applicable]
Amount: [in words]
Currency: [•]
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(f) [Payment date]
This Payment Instruction and any non-contractual obligation arising out of or in connection
with it shall be construed in accordance with and governed by English law.
NEWDAY FUNDING RECEIVABLES TRUSTEE LTD
By:
(Authorised Representative)
