CLIFFORD CHANCE LLP EXECUTION VERSION DATED 18 DECEMBER 2014 NEWDAY PARTNERSHIP FUNDING 2014-1 PLC AS ISSUER AND CITIBANK, N.A., LONDON BRANCH AS ISSUER ACCOUNT BANK AND NEWDAY CARDS LTD AS CASH MANAGER AND CITICORP TRUSTEE COMPANY LIMITED AS NOTE TRUSTEE ISSUER ACCOUNT BANK AGREEMENT
CONTENTS Clause Page 1. Definitions and Common Terms... 1 2. Appointment... 3 3. Establishment of Issuer Distribution Account... 4 4. The Accounts... 4 5. CitiDirect... 6 6. The Bank Mandate... 8 7. Acknowledgement by the Issuer Account Bank... 8 8. Issuer Account Bank... 9 9. Confirmation and Indemnity... 11 10. Representations and Warranties... 12 11. Personal Data and Sensitive Data... 12 12. Change of Note Trustee, Cash Manager or Issuer Account Bank... 13 13. Costs... 15 Schedule 1 Form of Bank Mandate... 17 Schedule 2 Form of Payment Instruction... 20
THIS AGREEMENT is made on 18 December 2014 BETWEEN: (1) NEWDAY PARTNERSHIP FUNDING 2014-1 PLC, a public limited company incorporated under the laws of England and Wales with registered number 9134273 and whose registered office is at 35 Great St. Helen's, London EC3A 6AP, United Kingdom (the "Issuer"); (2) CITIBANK, N.A., LONDON BRANCH, acting through its branch at Citigroup Centre, Canada Square, Canary Wharf, London E14 5LB, United Kingdom (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) CITICORP TRUSTEE COMPANY LIMITED, a private limited company incorporated under the laws of England and Wales with registered number 235914 and whose registered office is at Citigroup Centre, Canada Square, Canary Wharf, London E14 5LB, United Kingdom (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), WHEREAS: (each, a "Party"). 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: the Issuer Distribution Account; and - 1 -
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: relates to the rights of the Note Trustee thereunder, no such amendment shall be effective without the Note Trustee s prior written consent; and 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 callback contact pursuant to the Bank Mandate. "CitiDirect" means the internet/electronic based banking platform provided by the Issuer Account Bank to enable the Issuer to transact over the Accounts. "Citi Organisation" means Citigroup, Inc., Citibank, N.A., Citibank International Limited, their branches, subsidiaries and affiliates and anyone who succeeds them or to whom they assign their rights other than Citibank, N.A., London Branch. "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. - 2 -
"Instruction" means any Payment Instruction or any other instruction (for the avoidance of doubt, including any instruction made pursuant to CitiDirect), 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 17101996 and sort code 18-50-08, or any successor or replacement to such account at any other branch of 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: 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 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. 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. 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 terms and conditions of this Agreement. - 3 -
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. 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 Issuer to debit any Account provided that such Instruction: is given: (i) (ii) where the Issuer is able to give such Instruction by CitiDirect, in accordance with the standard practices, policies and procedures for CitiDirect most recently notified to the Issuer as at the date of such Instruction; or where, for whatever reason, the Issuer is not able to give such Instruction by CitiDirect, 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 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 a 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: 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; - 4 -
(c) 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; notwithstanding any other provision hereof, the Issuer Account Bank shall have the right: (i) (ii) 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 prior to acting upon any Instruction received in accordance with Clause 4.1(ii), to validate the authenticity of any such Instruction by telephoning a Call-back Contact; (d) (e) (f) the Issuer Account Bank may rely upon the confirmations or responses of anyone purporting to be the Call-back Contact in answering the telephone callback of the Issuer Account Bank and it shall assume all risks and losses (if any) resulting from such confirmations or responses; 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 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 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 - 5 -
Method of Instruction Cut-off Time CitiDirect Payment Instruction 2:30 p.m. on any Business Day 1:00 p.m. on any Business Day 2:30 p.m. 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 court or tribunal of a 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 2014-1 Loan Notes in accordance with the relevant priorities of payments set out in the Series 2014-1 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, 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. CITIDIRECT With regard to CitiDirect: the Issuer consents to the transmission of data and communications through the internet, acknowledges that the internet is not necessarily a secure communications and delivery system and understands the confidentiality and other risks associated with the transmission of data and communications through the internet. The Issuer agrees to be bound by any communication validated by a branch of the Issuer Account Bank or any subsidiary or affiliate of the Issuer Account Bank providing the service to which such - 6 -
communication relates according to the security procedures of the Issuer Account Bank (as updated from time to time, the "Security Procedures") applicable to the type of communication and consistent with the Issuer's access profile. The Issuer's use of CitiDirect after receipt of updated Security Procedures (including, but not limited to, the posting of such revised Security Procedures on the CitiDirect internet site) constitutes acceptance of such updated Security Procedures and such updated Security Procedures shall replace the prior agreed upon Security Procedures. (i) The Issuer will designate representatives as its security managers. These security managers shall have the responsibility for managing and administering the security of the transmission and delivery of communications, which shall include, inter alia: (A) (B) (C) (D) (E) (F) (G) (H) (I) appointing users of CitiDirect on behalf of the Issuer ("Users"); creating, deleting or modifying User profiles; building access profiles which define the applications available to Users in that group; enabling and disabling User identification; product set-up and site/flow control (i.e. identifying levels of transaction authorisation); allocating dynamic password cards or other access cards or passwords for system access; notifying the Issuer Account Bank if there is any reason to suspect the security of CitiDirect has been compromised; creating, deleting or modifying customer-managed libraries; and where relevant, completing, amending and/or supplementing the relevant customer implementation forms, and such other customer implementation forms as may be deemed reasonably necessary by the Issuer Account Bank from time to time in connection with the provision of services and/or products to the Issuer. (ii) Any two security managers, acting in concert, are authorised to give Instructions pursuant to CitiDirect to the Issuer Account Bank (and the Issuer Account Bank is authorised to accept such Instructions) in relation to any activity mentioned above or in connection with facilitating the Issuer s communication via the internet. - 7 -
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: receipt by it of the Bank Mandate from the Issuer; and 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: 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 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): 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 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 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. - 8 -
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: (c) (d) (e) (f) (g) 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; 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; 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; 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; 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; 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 its failure to perform any of its obligations under this Agreement save as are caused by its own wilful default, gross negligence or fraud; 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 - 9 -
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) (i) 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; in the event of: (i) (ii) conflicting Instructions being made in connection with the Accounts; or 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) (B) for so long as such conflicting Instructions continue; or until the Issuer Account Bank s duties have been clarified to the satisfaction of the Issuer Account Bank (acting reasonably); (j) (k) 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 purpose of marketing any Notes) and as required pursuant to any Requirement of Law or the rules of any relevant stock exchange; 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; - 10 -
(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 2014-1 Loan Notes in accordance with the relevant priorities of payments set out in the Series 2014-1 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, 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 Citi Organisation; 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 Citi Organisation; and (n) notwithstanding any reference to Permitted Investments in any Transaction Document, the Issuer Account Bank shall not be required to comply with any Instruction to invest any sums standing to the credit of any Account in any Permitted Investment until such time as the Issuer shall have acknowledged such additional terms in respect of Permitted Investments and the requirements of Directive 2004/39/EC on Markets in Financial Instruments as the Issuer Account Bank may require (acting reasonably). 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 2014-1 Loan Notes in accordance with the relevant priorities of payments set out in the Series 2014-1 Loan Note Supplement and applying such funds for such purpose in - 11 -
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: the charges of the Issuer Account Bank (if any) for the operation of the Accounts; and 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: (c) it is duly incorporated and validly existing under the laws of its jurisdiction of incorporation, and is not subject to any insolvency procedure; it has the power to enter into and perform its obligations under this Agreement which constitute legally binding and enforceable obligations; this Agreement and the underlying transaction to which it relates will not conflict in any material respect with: (i) (ii) (iii) any applicable law or regulation or any official or judicial order or control to which it is subject; its constitutional documents; or 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 - 12 -
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 shall be payable on the Relevant Transfer Date by utilising funds received by it as holder of the Series 2014-1 Loan Notes in accordance with the relevant priorities of payments set out in the Series 2014-1 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: by giving not less than 90 days' written notice; or 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. - 13 -
12.3 Following: the receipt by the Issuer of the Issuer Account Bank s Termination Notice; or 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 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: the Issuer Account Bank ceases to be a Qualified Institution; or 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) of such notice or 60 days (in respect of a downgrade by S&P) 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 2014-1 Loan Notes in accordance with the relevant priorities of payments set out in the Series 2014-1 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 - 14 -
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 2014-1 Loan Notes in accordance with the relevant priorities of payments set out in the Series 2014-1 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. - 15 -
SCHEDULE 1 FORM OF BANK MANDATE NEWDAY PARTNERSHIP FUNDING 2014-1 PLC At a duly constituted meeting of the board of directors of NewDay Partnership Funding 2014-1 Plc (the "Company") held at 35 Great St. Helen's, London EC3A 6AP, United Kingdom on [ ] 2014. IT WAS RESOLVED that: 1. The account number 17101996 in the name of the Company designated the "Issuer Distribution Account" held with Citibank, N.A., London Branch (the "Issuer Account Bank") at its branch at Citigroup Centre, Canada Square, Canary Wharf, London E14 5LB 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 CitiDirect (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 18 December 2014 between the Company, NewDay Cards Ltd, Citicorp Trustee Company 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 CitiDirect (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 CitiDirect, 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 CitiDirect 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 - 17 -
by or on behalf of the Note Trustee or any substitute administrator by the person or 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. - 18 -
SCHEDULE Name: Position Specimen signature Telephone number 1. 2. 3. 4. - 19 -
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.] Citibank, N.A., London Branch Citigroup Centre Canada Square Canary Wharf London, E14 5LB United Kingdom For the attention of Specialised Agency Group Fax: +44 (0)207 508 3883 [DATE] Issuer Account Bank Agreement We refer to the issuer account bank agreement dated 18 December 2014 between, inter alios, NewDay Partnership Funding 2014-1 Plc and Citibank, N.A., London Branch 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(ii) (The Accounts) of the Issuer Account Bank Agreement. You are instructed to pay the following amount[s] from the [Issuer Distribution Account] numbered 17101996 to the account[s] specified below: [Correspondent Bank] [SWIFT Code]/[ABA number (if US Dollars)] [Beneficiary Bank] [SWIFT Code/[Sort Code/(if Sterling)]] (c) (d) (e) [Account Name] [Account Number] [Reference, if applicable] Amount: [in words] - 20 -
Currency: [ ] (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 PARTNERSHIP FUNDING 2014-1 PLC By:... (Authorised Representative) - 21 -