dated 24 june 2015 newday funding 2015-1 plc as issuer and hsbc bank plc … · 178062-3-5549-v7.0...
TRANSCRIPT
CLIFFORD CHANCE LLP
EXECUTION VERSION
DATED 24 JUNE 2015
NEWDAY FUNDING 2015-1 PLC
AS ISSUER
AND
HSBC BANK PLC
AS ISSUER ACCOUNT BANK
AND
NEWDAY CARDS LTD
AS CASH MANAGER
AND
HSBC CORPORATE TRUSTEE COMPANY (UK) LIMITED
AS NOTE TRUSTEE
ISSUER ACCOUNT BANK AGREEMENT
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CONTENTS
Clause Page
1. Definitions and Common Terms ....................................................................................... 1
2. Appointment ...................................................................................................................... 4
3. Establishment of Issuer Distribution Account ................................................................... 4
4. The Accounts ..................................................................................................................... 4
5. HSBC's Electronic Banking Platform ............................................................................... 7
6. The Bank Mandate ............................................................................................................ 7
7. Acknowledgement by the Issuer Account Bank ............................................................... 7
8. Issuer Account Bank ......................................................................................................... 8
9. Confirmation and Indemnity ........................................................................................... 11
10. Representations and Warranties ...................................................................................... 11
11. Personal Data and Sensitive Data .................................................................................... 12
12. Change of Note Trustee, Cash Manager or Issuer Account Bank ................................... 12
13. Costs ................................................................................................................................ 14
Schedule 1 Form of Bank Mandate ......................................................................................... 16
Schedule 2 Form of Payment Instruction................................................................................. 19
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THIS AGREEMENT is made on 24 June 2015
BETWEEN:
(1) NEWDAY FUNDING 2015-1 PLC, a public limited company incorporated under
the laws of England and Wales with registered number 09385611 and whose
registered office is at 35 Great St. Helen's, London EC3A 6AP, United Kingdom (the
"Issuer");
(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 "Issuer
Account Bank", which expression shall include its successors as the Issuer Account
Bank pursuant to this Agreement);
(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
"Cash Manager", which expression shall include its successors as the Cash Manager
pursuant to the Security Trust Deed and Cash Management Agreement); and
(4) HSBC CORPORATE TRUSTEE COMPANY (UK) LIMITED, a private
company limited by shares incorporated under the laws of England and Wales with
registration number 06447555, having its registered office at 8 Canada Square,
London E14 5HQ, England (the "Note Trustee", which expression shall include the
trustee or co-trustees and its successors as the Note Trustee pursuant to the Note Trust
Deed),
(each, a "Party").
WHEREAS:
The Issuer Account Bank has agreed to operate the Accounts maintained with it by the Issuer,
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 issuer 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 "Issuer Master
Framework Agreement"). In addition, in this Agreement:
"Accounts" means, together, each of:
(a) the Issuer Distribution Account; and
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(b) any additional account opened pursuant to this Agreement.
"Authorised Representative" means, in respect of an Account, a person identified as
an authorised signatory pursuant to the Bank Mandate.
"Bank Mandate" means, in relation to each Account, the resolutions, instructions,
Authorised Representatives and Call-back Contacts relating to such 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:
(a) relates to the rights of the Note Trustee thereunder, no such amendment shall
be effective without the Note Trustee’s prior written consent; and
(b) 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 Issuer Account Bank (or such shorter notice period as the
Issuer Account Bank may agree in its absolute discretion).
"Call-back Contact" means, in respect of an 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
Issuer 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.
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"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 Issuer Account Bank is entitled to rely on for
the purposes of this Agreement.
"Issuer Distribution Account" means the account held in the name of the Issuer with
the Issuer Account Bank having account number 76181271 and sort code 40-05-15, or
any successor or replacement to such account at the Issuer Account Bank or at another
Qualified Institution.
"KYC Procedures" means the Issuer Account Bank’s procedures relating to the
verification of the identity (including, if applicable, beneficial ownership) and
business of its potential and existing clients.
"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 Issuer 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 Issuer
Account Bank may notify from time to time.
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.
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 7
(Restriction on Enforcement of Security; Non-Petition and Limited Recourse) of the
Common Terms shall prevail at all times.
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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 Issuer designates and appoints the Issuer Account Bank to act as its account bank
and the Issuer Account Bank accepts such designation and appointment in accordance
with the terms and conditions of this Agreement.
3. ESTABLISHMENT OF ISSUER DISTRIBUTION ACCOUNT
3.1 The Issuer Account Bank confirms that it has opened the Issuer Distribution Account,
in the name of the Issuer on the terms of this Agreement.
3.2 The Issuer Account Bank shall hold funds standing to the credit of any Account as
banker and not as trustee and as a result such money will not be subject to the Client
Money Rules. In the event that the Issuer Account Bank becomes insolvent, the client
money distribution rules will not apply and the Issuer will not be entitled to share in
any distribution under the client money distribution rules. In particular, the Issuer
Account Bank shall not segregate the Issuer's money from its own and it shall not be
liable to account to the Issuer for any profits made by its use as banker of such funds.
3.3 The Issuer undertakes to the Issuer Account Bank that it will provide to the Issuer
Account Bank all necessary documentation and other necessary information required
by the Issuer Account Bank from time to time to comply with all Requirements of
Law or Regulatory Direction in relation to any Account upon request by the Issuer
Account Bank, acting reasonably.
3.4 The Issuer undertakes that any Instructions it gives in connection with this Agreement
will be given only in accordance with terms of this Agreement.
4. THE ACCOUNTS
4.1 The Issuer Account Bank shall comply with any Instruction of the Cash Manager on
behalf of the Issuer to debit any Account provided that such Instruction:
(a) is given:
(i) where the Issuer is able to give such Instruction by HSBCnet, in
accordance with the standard practices, policies and procedures for
HSBCnet most recently notified to the Issuer as at the date of such
Instruction; or
(ii) where, for whatever reason, the Issuer is not able to give such
Instruction by HSBCnet, by submitting a Payment Instruction to the
Issuer Account Bank by fax in accordance with paragraph 19.1.3
(Communications in writing) of the Common Terms; or
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(b) is to pay, release, transfer, liquidate or otherwise deal with any 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 Issuer to
amounts standing to the credit of any Account.
Notwithstanding the provisions of this Clause 4.1, amounts shall only be withdrawn
from an Account to the extent that such withdrawal does not cause such Account to
become overdrawn and furthermore credits shall only be made to an Account when
the Issuer Account Bank shall have received cleared funds.
4.2 The Issuer acknowledges and agrees that:
(a) the Issuer 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 Issuer and the Issuer Account Bank shall not be liable for so
acting;
(b) the Issuer Account Bank is not responsible for any errors or omissions in any
Instruction made by the Issuer or resulting from fraud or the duplication of any
Instruction by the Issuer;
(c) notwithstanding any other provision hereof, the Issuer 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 Issuer and the Cash Manager 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 Issuer 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 Issuer Account Bank and it shall assume all risks and losses (if any)
resulting from such confirmations or responses;
(e) if the Issuer informs the Issuer Account Bank that it wishes to recall, cancel or
amend an Instruction (an "Amendment Instruction"), the Issuer 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 Accounts. Subject to Clause 4.2(c)(i),
any Amendment Instruction acted upon by the Issuer Account Bank shall be
binding on the Issuer; 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.
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4.3 The Issuer Account Bank agrees that if instructed pursuant to Clause 4.1 to make any
payment, and provided that such instruction is given by the Issuer in sufficient time to
allow the Issuer 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 19.2 (Time of receipt) of
the Common Terms shall not apply), provided that if any direction is received by the
Issuer Account Bank later than the cut-off time indicated in the table below, the Issuer
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 Issuer 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 Issuer Account Bank shall be under no obligation to debit any amounts from any
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 Issuer agrees that the Issuer Account Bank has no responsibility whatsoever to
ensure that amounts are deposited into the 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 Accounts.
4.6 The charges of the Issuer Account Bank (if any) for the operation of the Accounts
shall not be debited to any Account but shall be payable by the Issuer (by utilising
funds received by it as holder of the Series 2015-1 Loan Notes in accordance with the
relevant priorities of payments set out in the Series 2015-1 Loan Note Supplement
and applying such funds for such purpose in accordance with the relevant priorities of
payments set out in the Note Conditions) within 50 days of receipt of a written
invoice and shall be charged by the Issuer Account Bank to the Issuer as per the Issuer
Account Bank's standard practices, policies and procedures and at a rate separately
agreed with the Issuer. The Issuer Account Bank hereby acknowledges that it will
have no recourse against any funds standing to the credit of any Account or against
any Party other than the Issuer in respect of the said charges.
4.7 The Accounts will bear interest as agreed with the Issuer Account Bank from time to
time, subject to a minimum of zero, which will be credited to the Accounts in
accordance with the Issuer Account Bank's standard practices, policies and procedures.
Where interest which has accrued but not yet been credited to the Accounts is
required to be released in accordance with an Instruction delivered under Clause 4.1,
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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 and the fax indemnity
between the Issuer Account Bank and the Issuer, 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 Issuer
to the Issuer 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 Issuer has agreed to deliver the Bank Mandate to the Issuer Account Bank and
the Issuer Account Bank hereby confirms to the Issuer and the Note Trustee:
(a) receipt by it of the Bank Mandate from the Issuer; and
(b) that such Bank Mandate is operative and supersedes any previous mandates or
arrangements relating to the Accounts.
7. ACKNOWLEDGEMENT BY THE ISSUER ACCOUNT BANK
7.1 Notwithstanding anything to the contrary in the Bank Mandate, the Issuer Account
Bank hereby:
(a) acknowledges that pursuant to the Note Trust Deed the Issuer has assigned by
way of security or intends to assign by way of security its interest in the
Accounts to the Note Trustee by way of security for amounts owed in respect
of the Notes; and
(b) subject to execution of the Note Trust Deed (such execution to be notified by
the Issuer to the Issuer Account Bank), waives any right it has or may
hereafter acquire to combine, consolidate or merge any of the Accounts with
any other account of the Issuer or any other person or any liabilities of the
Issuer or any other person to the Issuer 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 Accounts in or towards or conditionally upon satisfaction
of any liabilities to it of the Issuer or any other person.
7.2 Subject to execution of the Note Trust Deed, the Issuer Account Bank agrees (with
the consent of the Issuer), upon receipt of a written notice from the Note Trustee
stating that the Note Trustee has served an Enforcement Notice (a copy of which shall
be enclosed with such notice):
(a) to comply with any instruction of the Note Trustee expressed to be given by
the Note Trustee or any receiver appointed by the Note Trustee pursuant to the
Note Trust Deed in respect of the operation of the Accounts and the Issuer
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Account Bank shall be entitled to rely on any such instruction purporting to
have been given on behalf of the Note Trustee or such receiver without
enquiry; and
(b) that all right, authority and power of the Issuer in respect of the operation of
the Accounts shall be deemed to be terminated and of no further effect.
7.3 Until the Issuer Account Bank shall have been notified in writing by the Note Trustee
that none of the Notes are outstanding, the Issuer Account Bank shall provide the
Issuer and the Cash Manager (in each case, or any successor thereto in such capacity
of which the Issuer Account Bank has been notified in writing) with a monthly
statement in respect of each Account before each Interest Payment 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.
7.4 The Issuer Account Bank represents that, as at the date of this Agreement, it is a
Qualified Institution.
8. ISSUER ACCOUNT BANK
In consideration for the Issuer Account Bank agreeing to act hereunder it is further
agreed by the Issuer that:
(a) the Issuer Account Bank shall not be under any duty to give amounts standing
to the credit of the 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 Issuer Account Bank. The
Issuer 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
Issuer except this Agreement and the Issuer Master Framework Agreement
and any Instruction;
(c) the Issuer Account Bank is under no duty to ensure that funds withdrawn from
the 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 Issuer Account Bank nor any of its officers, employees or agents
shall be required to make any payment or distribution to the extent that
amounts standing to the relevant Account are insufficient and shall incur no
liability whatsoever from any non-payment or non-distribution in such
circumstances;
(e) the Issuer agrees to the call-back arrangement and the use of any form of
telephonic or electronic monitoring or recording by the Issuer Account Bank
according to the Issuer Account Bank's standard operating procedures or as the
Issuer Account Bank deems appropriate for security and service purposes;
(f) neither the Issuer 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
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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 Issuer 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 Issuer 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 Issuer 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 Issuer Account
Bank would normally comply) of any relevant government, government
agency, regulatory authority or stock exchange to which the Issuer 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 Issuer 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 Accounts;
or
(ii) the Issuer Account Bank in good faith concluding that its duties
hereunder are unclear in a material respect,
the Issuer Account Bank shall be entitled in its sole discretion to refuse to
comply with any Instructions either:
(A) for so long as such conflicting Instructions continue; or
(B) until the Issuer Account Bank’s duties have been clarified to
the satisfaction of the Issuer Account Bank (acting reasonably);
(j) other than in respect of any purely factual reference to the Issuer 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 Issuer Account Bank or the rights,
powers, or duties of the Issuer Account Bank under this Agreement shall be
publicly issued by the Issuer or on its behalf unless the Issuer 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
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purpose of marketing any Notes) and as required pursuant to any Requirement
of Law or the rules of any relevant stock exchange;
(k) the Issuer 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 Issuer 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 Issuer 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 Issuer upon request. Without prejudice to Clause 9.1 or 9.2
(Confirmation and Indemnity), the Issuer 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 Issuer shall indemnify
the Issuer Account Bank (by utilising funds received by it as holder of the
Series 2015-1 Loan Notes in accordance with the relevant priorities of
payments set out in the Series 2015-1 Loan Note Supplement and applying
such funds for such purpose in accordance with the relevant priorities of
payments set out in the Note Conditions) 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 Issuer Document to
which the Issuer Account Bank is a party, the obligations and duties of
the Issuer Account Bank are binding only on the Issuer Account Bank
and are not obligations or duties of any other member of the HSBC
Group; and
(ii) the rights of the Issuer with respect to the Issuer Account Bank extend
only to the Issuer 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 Issuer 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 Issuer and the Note Trustee), which shall have effect
subject to any contrary provisions in this Agreement;
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(o) the Issuer 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 Issuer Account Bank shall not be bound to enquire as to the occurrence or
otherwise of an Event of Default, the service of an Enforcement Notice or the
performance by any party to this Agreement or the other Issuer Documents of
its obligations hereunder or thereunder.
9. CONFIRMATION AND INDEMNITY
9.1 Unless otherwise directed by the Note Trustee pursuant to Clause 7.2
(Acknowledgement by the Issuer Account Bank), the Issuer Account Bank in making
payment from the Accounts, in accordance with this Agreement, shall be entitled to
act as directed by the Issuer pursuant to Clause 4.1 (The Accounts) and to rely as to
the amount of any such payment on the confirmation of the Issuer 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 Issuer Account Bank shall have no liability for any loss, injury or
consequence suffered or incurred by the Issuer for any action taken as a consequence
of relying on any such confirmation except in the case of the Issuer Account Bank's
wilful default, gross negligence or fraud.
9.2 The Issuer shall (by utilising funds received by it as holder of the Series 2015-1 Loan
Notes in accordance with the relevant priorities of payments set out in the Series
2015-1 Loan Note Supplement and applying such funds for such purpose in
accordance with the relevant priorities of payments set out in the Note Conditions), on
the Relevant Transfer Date, indemnify the Issuer Account Bank against any loss, cost,
damage, charge or expense incurred by the Issuer Account Bank in complying with
any direction of the Issuer delivered pursuant to and in accordance with this
Agreement, save that this indemnity shall not extend to:
(a) the charges of the Issuer Account Bank (if any) for the operation of the
Accounts; and
(b) any loss, cost, damage, charge or expense arising from the Issuer 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 Issuer 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
The Issuer represents and warrants to the Issuer Account Bank as at the date of this
Agreement that:
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(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 Issuer undertakes not to supply to the Issuer 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 Issuer 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 Issuer Account Bank pursuant to its KYC Procedures. The
Issuer 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 NOTE TRUSTEE, CASH MANAGER OR ISSUER ACCOUNT
BANK
12.1 The Issuer Account Bank shall give not less than 4 weeks' notice (the "Issuer
Account Bank's Termination Notice") to the Issuer, the Cash Manager and the Note
Trustee of any termination of the banking arrangements granted to the Issuer
provided that the Issuer Account Bank shall continue to perform all its obligations
under this Agreement until the Issuer Account Bank's rights and obligations have
been vested in a new Issuer Account Bank in accordance with Clause 12.3 or 12.4. In
the event of any such termination the Issuer 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 Issuer's banking arrangements to the new
Issuer Account Bank. The Issuer Account Bank shall meet its own costs in effecting
such transfer but the Issuer shall meet any other costs in respect thereof, which costs
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shall be payable on the Relevant Transfer Date by utilising funds received by it as
holder of the Series 2015-1 Loan Notes in accordance with the relevant priorities of
payments set out in the Series 2015-1 Loan Note Supplement and applying such funds
for such purpose in accordance with the relevant priorities of payments set out in the
Note Conditions.
12.2 The Issuer may terminate the appointment of the Issuer 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 Issuer
Account Bank or in the event that the Issuer Account Bank ceases to be a
Qualified Institution, immediately on written notice,
(the "Issuer’s Termination Notice") to the Issuer Account Bank, the Cash Manager
and the Note Trustee, provided that the Issuer Account Bank shall continue to
perform all its obligations under this Agreement until the Issuer Account Bank's rights
and obligations have been vested in a new Issuer Account Bank in accordance with
Clause 12.3 or 12.4 and provided that the new Issuer Account Bank enters into an
account bank agreement in substantially the same terms as this Agreement and
provided further that the Cash Manager confirms in writing that, in its opinion, the
replacement of the Issuer Account Bank will not cause any reduction or withdrawal of
any Rating Agency's current rating of the Notes. In the event of any such termination
the Issuer 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 Issuer's banking arrangements to the new Issuer Account Bank.
12.3 Following:
(a) the receipt by the Issuer of the Issuer Account Bank’s Termination Notice; or
(b) the distribution by the Issuer of the Issuer’s Termination Notice,
the Issuer shall, as soon as reasonably practicable, appoint a Qualified Institution upon
consultation with the Note Trustee as a successor Issuer Account Bank in respect of
the Accounts.
12.4 If by the end of the notice period in Clause 12.1 or 12.2(a) a new Issuer Account Bank
has not been appointed in accordance with Clause 12.3, the Issuer Account Bank may
appoint a successor Issuer Account Bank itself, provided that such successor Issuer
Account Bank must be a Qualified Institution.
12.5 In the event that:
(a) the Issuer Account Bank ceases to be a Qualified Institution; or
(b) an Insolvency Event occurs in respect of the Issuer Account Bank,
the Issuer Account Bank shall as soon as reasonably practicable give notice of that
fact to the Cash Manager, the Note Trustee and the Issuer. As soon as practicable
thereafter, and in any event within 30 days (in respect of a downgrade by Fitch or
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DBRS) of such notice from the date the Issuer Account Bank ceases to be a Qualified
Institution, or such longer period as may be agreed with the relevant Rating Agencies
as not leading to a downgrade of any outstanding Notes, the Issuer Account Bank or
any successor shall, at the cost of the Issuer Account Bank, transfer the closing credit
balance of the 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 Issuer upon consultation with the Note Trustee. The
Issuer Account Bank shall meet its own costs in effecting such transfer but the Issuer
shall meet any other costs in respect thereof, which costs shall be payable on the
Relevant Transfer Date by utilising funds received by it as holder of the Series 2015-1
Loan Notes in accordance with the relevant priorities of payments set out in the Series
2015-1 Loan Note Supplement and applying such funds for such purpose in
accordance with the relevant priorities of payments set out in the Note Conditions.
12.6 If there is any change in the identity of the Note Trustee in accordance with the Note
Trust Deed, the Cash Manager in accordance with the Security Trust Deed and Cash
Management Agreement or the Issuer Account Bank in accordance with this
Agreement, the parties hereto shall execute such documents (in the case of any
document to be signed by the Note Trustee or the Cash Manager, in form and
substance satisfactory to it) and (subject, in the case of the Note Trustee, to being
indemnified and/or secured and/or prefunded to its satisfaction) take such actions as
the new Note Trustee, Cash Manager or Issuer Account Bank and the outgoing Note
Trustee, Cash Manager or Issuer Account Bank may require for the purpose of vesting
in the new Note Trustee, Cash Manager or Issuer Account Bank the rights and
obligations of the outgoing Note Trustee, Cash Manager or Issuer Account Bank
under this Agreement, and releasing the outgoing Note Trustee, Cash Manager or
Issuer Account Bank from its future obligations under this Agreement.
13. COSTS
The Issuer agrees to pay (by utilising funds received by it as holder of the Series
2015-1 Loan Notes in accordance with the relevant priorities of payments set out in
the Series 2015-1 Loan Note Supplement and applying such funds for such purpose in
accordance with the relevant priorities of payments set out in the Note Conditions), on
the Relevant Transfer Date, the reasonable costs (including reasonable legal costs and
expenses) of the Issuer Account Bank in connection with the negotiation of this
Agreement and the establishment of the 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
Issuer 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.
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SCHEDULE 1
FORM OF BANK MANDATE
NEWDAY FUNDING 2015-1 PLC
At a duly constituted meeting of the board of directors of NewDay Funding 2015-1 PLC (the
"Company") held at 35 Great St. Helen's, London EC3A 6AP, United Kingdom on [•] 2015.
IT WAS RESOLVED that:
1. The account number 76181271 in the name of the Company designated the "Issuer
Distribution Account" held with HSBC Bank plc (the "Issuer Account Bank") at its
branch at 8 Canada Square, London E14 5HQ be used as an account for the benefit of
the Company (the "Issuer Distribution Account").
2. In relation to the Issuer Distribution Account, the Issuer 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 Issuer
Account Bank Agreement (as defined below)) in respect of the Issuer Distribution
Account opened pursuant to the issuer account bank agreement to be entered into on
or about 24 June 2015 between the Company, NewDay Cards Ltd, HSBC Corporate
Trustee Company (UK) Limited (the "Note Trustee") and the Issuer Account Bank
(the "Issuer 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 Issuer 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
Issuer Account Bank Agreement) for the Issuer Distribution Account)) or, in the case
of instructions given by HSBCnet, given by the Company, or any person authorised to
act on behalf of the Company, in accordance with the standard practices, policies and
procedures for HSBCnet most recently notified to the Issuer as at the date of such
Instruction.
3. The mandate given to the Issuer Account Bank by virtue of these resolutions shall,
subject as provided in paragraph 6 below, remain in force, unless and until the Issuer
Account Bank has received from the Note Trustee written notice (the "Note Trustee's
Notice") that the Note Trustee has served an Enforcement Notice (as defined in the
issuer master framework agreement dated on or about the date of the Issuer Account
Bank Agreement, as amended and/or restated and/or supplemented from time to time,
between, inter alios, the parties to the Issuer Account Bank Agreement).
4. If the Issuer Account Bank has received the Note Trustee's Notice, any instructions or
other directions referred to in paragraph 2 above shall, if purporting to be dated after
the date of receipt of the Note Trustee's Notice by the Issuer Account Bank, be signed
by or on behalf of the Note Trustee or any substitute administrator by the person or
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persons specified by the Note Trustee in the Note Trustee's Notice or as otherwise
agreed or directed by the Note Trustee hereafter.
5. The Issuer Account Bank be supplied with a list of names of directors, the secretary
and other officers and authorised signatories of the Company and the Issuer Account
Bank be authorised to act on any information given by a director or the secretary or
any other officer or authorised signatory of the Company as to any changes therein.
6. These resolutions be communicated to the Issuer 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 (with the prior written consent of the Note Trustee
where the amending resolution relates to the rights or obligations of the Note Trustee
hereunder) and a copy thereof (and of such consent, if applicable), certified by any
one of the directors or the secretary of the Company, shall be received by the Issuer
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 [Issuer Distribution Account]. The [Issuer Distribution 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]
Issuer Account Bank Agreement
We refer to the issuer account bank agreement dated 24 June 2015 between, inter alios,
NewDay Funding 2015-1 Plc and HSBC Bank plc as Issuer Account Bank (the "Issuer
Account Bank Agreement"). Words and expressions used in this Payment Instruction shall
have the same meanings as in the Issuer Account Bank Agreement.
This Payment Instruction is being provided to you in accordance with clause 4.1(a)(ii) (The
Accounts) of the Issuer Account Bank Agreement. You are instructed to pay the following
amount[s] from the [Issuer Distribution Account] numbered 76181271 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: [•]
(f) [Payment date]
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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 2015-1 PLC
By: ....................................
(Authorised Representative)