Exhibit 4.3
▇▇▇▇▇▇▇▇ LIMITED LIABILITY PARTNERSHIP
CHANCE
ARRAN FUNDING LIMITED
as Issuer
THE BANK OF NEW YORK, LONDON BRANCH
as Note Trustee
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ARRAN FUNDING NOTE TRUST DEED
RELATING TO
ARRAN FUNDING MEDIUM TERM NOTE PROGRAMME
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CONTENTS
CLAUSE PAGE
1. Interpretation........................................................ 2
2. Amount And Issue Of The Series Of Notes .............................. 3
3. Covenant To Pay....................................................... 7
4. Security............................................................. 11
5. Note Trustee's Powers................................................ 13
6. Appointment And Removal Of Receiver And Administrator................ 14
7. Provisions Relating To Receiver...................................... 16
8. The Notes............................................................ 20
9. Covenants............................................................ 21
10. Amendments And Substitution.......................................... 21
11. Enforcement.......................................................... 25
12. Application Of Monies................................................ 28
13. Further Assurances................................................... 29
14. Terms Of Appointment................................................. 29
15. Costs And Expenses................................................... 44
16. Appointment And Retirement........................................... 49
17. Certificates And Opinions............................................ 51
18. Release Of Security.................................................. 52
19. Third Party Beneficiaries............................................ 52
20. Actions By Noteholders............................................... 53
21. Tia Prevails......................................................... 53
Schedule 1 TERMS AND CONDITIONS OF THE NOTES............................ 55
Schedule 2 ............................................................. 56
Part A Form Of Global Note Certificate........................... 56
Part B Form Of Individual Note Certificate....................... 67
Part C Terms And Conditions...................................... 70
Schedule 3 PROVISIONS FOR MEETINGS OF NOTEHOLDERS....................... 71
Schedule 4 NOTICE OF ASSIGNMENT - ISSUER NTD JERSEY SECURED PROPERTY.... 81
EXECUTION CLAUSES........................................................... 85
THIS ARRAN FUNDING NOTE TRUST DEED is made on [*] 2005.
BETWEEN:
(1) ARRAN FUNDING LIMITED incorporated in Jersey (registered number 88474)
whose registered office is at ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇
▇▇▇ (the "ISSUER"); and
(2) THE BANK OF NEW YORK a New York banking corporation acting through its
London branch whose principal place of business is at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇ ▇▇▇ as note trustee (the "NOTE TRUSTEE"), which expression
shall include such company and all other persons for the time being
acting as the trustee or trustees under the Arran Funding Note Trust
Deed.
WHEREAS
(A) The Issuer has authorised the establishment of the Programme.
(B) Notes up to the Programme Limit may be issued pursuant to the Programme.
(C) Each Series of Notes issued in accordance with the Programme will be
constituted and secured by this Arran Funding Note Trust Deed and the
relevant Arran Funding Note Trust Deed Supplement executed on or about
the relevant Issue Date.
(D) The Note Trustee has agreed to act as trustee of the Security Documents
for each Series and to hold the Security on trust for the Secured
Creditors on the terms and conditions contained in this Arran Funding
Note Trust Deed and any relevant Arran Funding Note Trust Deed
Supplement.
NOW THIS DEED WITNESSES AND IT IS HEREBY DECLARED as follows:
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1. INTERPRETATION
1.1 DEFINITIONS
Unless otherwise defined in this Arran Funding Note Trust Deed or the
context requires otherwise, words and expressions used in this Arran
Funding Note Trust Deed have the meanings and constructions ascribed to
them in the Master Definitions Schedule set out in Schedule 1 (Master
Definitions Schedule) of the Arran Funding Master Framework Agreement
which is dated on or about the date of this Arran Funding Note Trust
Deed and signed for the purpose of identification by, amongst others,
each of the parties to this Agreement.
1.2 INCORPORATION OF COMMON TERMS
Except as provided below, the Common Terms apply to this Arran Funding
Note Trust Deed, where applicable, and shall be binding on the parties
to this Arran Funding Note Trust Deed and the Noteholders as if set out
in full in this Arran Funding Note Trust Deed.
1.3 AMENDMENT TO COMMON TERMS
The Common Terms are, for the purposes of this Arran Funding Note Trust
Deed, amended as follows:
1.3.1 Paragraph 1 (Further Assurance) of the Common Terms applies to
this Arran Funding Note Trust Deed as if set out in full in
this Arran Funding Note Trust Deed, and as if the Issuer were
the Obligor (as defined therein) and the Note Trustee were the
Obligee (as defined therein);
1.3.2 Limited recourse and non-petition
The provisions of Paragraph 8 (Limited Recourse and
Non-Petition) of the Common Terms apply to this Arran Funding
Note Trust Deed as if set out in full in this Arran Funding
Note Trust Deed.
1.4 CONFLICT WITH COMMON TERMS
If there is any conflict between the provisions of the Common Terms and
the provisions of this Arran Funding Note Trust Deed, the provisions of
this Arran Funding Note Trust Deed shall prevail, save for where any
provision of this Arran Funding Note Trust Deed relates to VAT, in which
case the provisions of the Common Terms shall prevail.
1.5 GOVERNING LAW AND JURISDICTION
This Arran Funding Note Trust Deed and all matters arising from or
connected with it shall be governed by English law in accordance with
Paragraph 26 (Governing Law) of the Common Terms. Paragraph 27
(Jurisdiction) of the Common Terms applies to this Arran Funding Note
Trust Deed as if set out in full in this Arran Funding Note Trust Deed.
1.6 REPRESENTATIONS AND WARRANTIES
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The Issuer gives certain representations and warranties to the Note
Trustee on the terms set out in Schedule 4 (Issuer's Representations and
Warranties) of the Arran Funding Master Framework Agreement.
1.7 COVENANTS
The Issuer covenants with the Note Trustee on the terms set out in
Schedule 5 (Issuer Covenants) of the Arran Funding Master Framework
Agreement.
2. AMOUNT AND ISSUE OF THE SERIES OF NOTES
2.1 ISSUANCE IN SERIES
The Issuer shall be at liberty from time to time (but subject always to
the provisions of this Arran Funding Note Trust Deed) without the
consent of the Noteholders or any other beneficiary of the trusts of
this Arran Funding Note Trust Deed to create and (subject to the
conditions precedent in Clause 2.2 (Constitution of Notes)) issue new
Series of Notes upon such terms as to ranking, interest, conversion,
redemption and otherwise as the Issuer may at the time of issue of such
Series determine, provided that such Series of Notes are not
consolidated, and do not form a single Series with any existing Series.
A Series of Notes shall be secured on, and only on, such Secured
Property as may be specified in the Arran Funding Note Trust Deed
Supplement constituting such Series of Notes. The aggregate principal
amount of Notes outstanding from time to time may not exceed the
Programme Limit.
2.2 CONSTITUTION OF NOTES
Any Notes of the Series which is to be created and issued pursuant to
the provisions of Clause 2.1 (Issuance in Series) shall be constituted
pursuant to each Arran Funding Note Trust Deed Supplement.
On any Issue Date, the Issuer shall procure the registration in the
Register of the relevant Note(s) in the name of each relevant initial
Noteholder, upon receipt by the Note Trustee of the following:
2.2.1 an executed Arran Funding Note Trust Deed Supplement (duly
stamped or denoted with any applicable stamp duties or other
documentation taxes) in respect of the Series of Notes to be
issued satisfying the criteria set out in Clause 2.3 below and
specifying the Principal Terms (as defined below) of such
Series and the supplements, amendments and variations to this
Arran Funding Note Trust Deed as a consequence thereof;
2.2.2 a certificate signed by one director of the Issuer certifying
the absence of any Event of Default or Potential Event of
Default that is continuing and that the Programme Limit will
not be exceeded by the issue of the Notes in question;
2.2.3 (a) a legal opinion from Jersey counsel regarding the
capacity of the Issuer;
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(b) a legal opinion from English counsel regarding the
legality, validity, enforceability and binding nature
of such Arran Funding Note Trust Deed Supplement; and
(c) legal opinions from such other counsel and jurisdiction
as may be applicable regarding any Secured Property
located outside of England and Wales;
2.2.4 a solvency certificate signed by a duly authorised signatory
and dated the Issue Date, from the Issuer;
2.2.5 the Loan Note Supplement, the relevant Swap Documents (where
applicable) and any other relevant document in respect of the
Series of Notes; and
2.2.6 written confirmation from each relevant Rating Agency or from
the investment banking firm or commercial bank as applicable
pursuant to sub-clause 2.3.2 below.
2.3 ARRAN FUNDING NOTE TRUST DEED SUPPLEMENT
2.3.1 An Arran Funding Note Trust Deed Supplement shall be executed
in order to effect each issuance of a Series of Notes and to
create security over the relevant Secured Property relating to
such Series of Notes and such Arran Funding Note Trust Deed
Supplement shall:
(i) be executed by the Issuer, Note Trustee, the Principal
Paying Agent, the Agent Bank, the Paying Agent, and,
where applicable, the Swap Counterparty and any other
party to such Arran Funding Note Trust Deed Supplement;
(ii) set out the consent of the Note Trustee to such issue
of the Series of Notes which shall be deemed to be
given by its execution of the relevant Arran Funding
Note Trust Deed Supplement;
(iii) constitute, after the issuance of the relevant Series
of Notes, a supplement by the Issuer and the Note
Trustee to this Arran Funding Note Trust Deed which, in
respect of such Series of Notes, shall thereafter be
read and construed as supplemented, amended and varied
by such Arran Funding Note Trust Deed Supplement;
(iv) set out the principal terms of such Series of Notes
(all such terms the "PRINCIPAL TERMS") which shall
include, without limitation, the following:
(1) the Principal Amount Outstanding of the Notes
upon issue for such Series;
(2) the Secured Property for such Series;
(3) the Issue Date;
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(4) the names of any accounts or ledgers to be used
in relation to such Series of Notes and the
terms governing the operation of any such
accounts or ledgers and use of monies therein;
(5) the priority of payments prior to enforcement;
(6) any additional Secured Creditors;
(7) the terms governing any deposit into any account
provided for such Series; and
(8) any other relevant terms of such Series.
2.3.2 Notwithstanding that neither the Note Trustee nor the
Noteholders may have any right of recourse against the Rating
Agencies in respect of confirmation given by such Rating
Agencies and relied upon by the Note Trustee pursuant to this
sub-clause, each of the Issuer and the Note Trustee shall be
entitled to assume without further investigation that the
execution of the Arran Funding Note Trust Deed Supplement and
the issue of the Notes of the related Series will not be
materially prejudicial to the rights, benefits and interests
of the Secured Creditors of any other Series and in particular
will not be materially prejudicial to the timing and
distribution of payments to such other Secured Creditors of
such Series if it receives written confirmation from:
(i) each relevant Rating Agency that the issue of Notes of
the relevant Series will not result in such Rating
Agency reducing or withdrawing its then current rating
on any outstanding Notes of any other Series; or
(ii) if on the relevant Issue Date there is one or more
Series then in issue and any such Series are not
currently rated by Rating Agencies, an investment
banking firm or commercial bank recognised in the
United Kingdom in the form of a director's certificate
to that effect.
Such written confirmation shall be conclusive evidence that
the rights, benefits and interests of the Secured Creditors of
any other Series have not been materially prejudiced. It is
agreed and acknowledged that, notwithstanding the foregoing, a
credit rating is an assessment of credit and does not address
other matters that may be of relevance to Noteholders. In
being entitled to rely on the fact that the Rating Agencies
have confirmed that the then current rating of the relevant
Series of the Notes would not be adversely affected, it is
expressly agreed and acknowledged by the Note Trustee and
specifically notified to Noteholders (and to which they are
bound by the Conditions) that the above does not impose or
extend any actual or contingent liability for the Rating
Agencies to the Note Trustee, the Noteholders or any other
Person or create any legal relations between the Rating
Agencies, the Note Trustee, the Noteholders or any other
Person whether by way of contract or otherwise.
2.3.3 Each Secured Creditor, by its execution of an Arran Funding
Note Trust Deed Supplement, or in the case of a Noteholder, by
the purchase of the relevant Notes subject to the relevant
Conditions, consents and confirms that the security
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trust constituted for the benefit of the relevant Secured
Creditor or Noteholder under this Arran Funding Note Trust
Deed and any Arran Funding Note Trust Deed Supplement may be
supplemented, amended and varied from time to time in
accordance with the terms of this Arran Funding Note Trust
Deed, the Conditions and any such additional Arran Funding
Note Trust Deed Supplement.
2.4 PAYMENTS IN SPECIFIED CURRENCY
2.4.1 All payments in respect of, under and in connection with this
Arran Funding Note Trust Deed and the Notes to a Noteholder
shall be made in the relevant currency as required by the
Conditions. All other sums payable shall be payable in
sterling PROVIDED THAT:
(i) each payment in respect of costs shall be made in the
currency in which the same were incurred; and
(ii) each payment which is expressed herein to be payable in
another currency shall be made in that other currency.
2.4.2 On each date upon which this Arran Funding Note Trust Deed or
any Arran Funding Note Trust Deed Supplement requires an
amount to be paid by or on behalf of any party to the Issuer,
such party shall, save as expressly provided otherwise herein
or in such Arran Funding Note Trust Deed Supplement, make the
same available to the Issuer by payment in Sterling and in
immediately available funds to such account and bank in London
as the Issuer shall have specified in writing for this purpose
no later than midday on the day that such amount becomes
payable.
2.5 FEES APPLY TO EACH SERIES
2.5.1 The provisions in the Security Documents concerning costs,
expenses, fees, remuneration and other financial obligations
(whether arising under indemnities or otherwise) shall, save
as specifically provided herein, apply separately to each
Series in respect of the costs, expenses, fees, remuneration
and financial obligations which arise in respect of such
Series. No such amount incurred in respect of any Series will,
save as specifically provided herein, be deducted from any
amount payable to the Noteholders in respect of any other
Series, nor will any such amount be in any other way charged
to any other such Noteholders. The provisions of the Security
Documents shall be read accordingly.
2.5.2 If the Note Trustee determines in its sole discretion that any
such amounts cannot be considered to be solely referable to a
particular Series, it shall be entitled in its sole discretion
to allocate such amounts between such Series as it shall
consider, those amounts to be referable pro rata in the
proportion which the aggregate Principal Amount Outstanding of
all Notes in respect of each such Series bears to the
aggregate Principal Amount Outstanding of all Notes of all
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such Series (as at the date such amounts were incurred) in
respect of which such amounts were incurred as a whole.
2.6 RELATED AGREEMENTS
In relation to each Series, if specified in the relevant Arran Funding
Note Trust Deed Supplement, the Issuer may enter into one or more Swap
Agreements or other related agreements with a Swap Counterparty, under
which the Issuer will make payments to such Swap Counterparty and the
Swap Counterparty will make payments to the Issuer as specified in such
Swap Agreement or other related agreement. Each swap transaction or
other form of hedging transaction evidenced by a Swap Agreement and
other related agreement will terminate on the date specified in the
relevant Arran Funding Note Trust Deed Supplement, unless terminated
earlier in accordance with its terms.
3. COVENANT TO PAY
3.1 COVENANT TO PAY
The Issuer covenants with the Note Trustee that it shall, as and when
any Series becomes due to be redeemed or any principal of any Series
becomes due to be repaid in accordance with the Conditions in respect of
such Series, unconditionally pay or procure to be paid to or to the
order of the Note Trustee in immediately available freely transferable
funds in the relevant currency the principal amount of the Series or any
of them becoming due for payment on that date and shall (subject to the
provisions of the Conditions), until all such payments (both before and
after judgment or other order) are duly made, and unconditionally pay or
procure to be paid to or to the order of the Note Trustee as aforesaid
on the dates provided for in the Conditions interest on the Principal
Amount Outstanding (or such other amount as may be specified in the
Final Terms) of the Notes and Additional Interest or any of them
attributable to such Series outstanding from time to time as set out in
the Conditions PROVIDED THAT:
3.1.1 every payment of principal or interest in respect of such
Notes or any of them made to the Principal Paying Agent in the
manner provided in the Agency Agreement shall satisfy, to the
extent of such payment, the relevant covenant by the Issuer
contained in this Clause 3 except to the extent that there is
a default in the subsequent payment thereof to the relevant
Noteholders in accordance with the Conditions;
3.1.2 if any payment of principal or interest in respect of such
Notes or any of them is made after the due date, payment shall
be deemed not to have been made until either the full amount
is paid to the relevant Noteholders or, if earlier, the
seventh day after notice has been given to the relevant
Noteholders in accordance with the Conditions that the full
amount has been received by the Principal Paying Agent or the
Note Trustee except, in the case of payment to the Principal
Paying Agent to the extent that there is failure in the
subsequent payment to the Noteholders under the Conditions;
and
3.1.3 in any case where payment of the whole or any part of the
principal amount due in respect of any Note is improperly
withheld or refused interest shall accrue on
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the whole or such part of such principal amount from the date
of such withholding or refusal until the date either on which
such principal amount due is paid to the relevant Noteholders
or, if earlier, the seventh day after which notice is given to
the relevant Noteholders in accordance with the Conditions
that the full amount payable in respect of the said principal
amount is available for collection by the relevant Noteholders
PROVIDED THAT on further due presentation of the relevant
Note, or, (if so provided for the Conditions) the relevant
Note Certificate, such payment is in fact made.
3.1.4 MAXIMUM PAYMENTS
No provision contained in the Conditions or the Security
Documents will require the Issuer to pay:
(a) an amount of principal in respect of a Note which
exceeds the Principal Amount Outstanding of such Note;
or
(b) an amount of interest calculated on any principal
amount in excess of such Principal Amount Outstanding;
in each case, at the relevant time.
The Note Trustee will hold the benefit of this covenant and the covenant
in Clause 9.1 (Covenant to comply with the Arran Funding Note Trust
Deed) on trust for the Noteholders in accordance with their respective
interests and holds the benefit of the remainder of the Trust Property
on trust for the Secured Creditors.
3.2 PAYMENTS TO SECURED CREDITORS
The Issuer hereby covenants to pay to the Note Trustee all amounts due
to the Secured Creditors of a Series in accordance with the order of
priority of payments prior to and post enforcement of the security in
respect of that Series as set out in the relevant Arran Funding Note
Trust Deed Supplement, Condition 4 (Status, Security and Priority of
Payments) (in terms of post enforcement) and Clause 12 (Application of
Monies) and any other amounts payable by the Issuer hereunder which the
Note Trustee determines in its sole discretion are referable or
allocable to a Series (the "SECURED OBLIGATIONS") PROVIDED, HOWEVER,
that payment of any sum due to a Secured Creditor of such Series made to
such Secured Creditor shall, to that extent, satisfy such obligation.
This covenant shall only have effect each time obligations are owed to
Secured Creditors when the Note Trustee shall hold the benefit of this
covenant in relation to each Series on trust for itself and each Secured
Creditor of such Series according to their respective interests. For the
avoidance of doubt, nothing in this Arran Funding Note Trust Deed shall
prevent the Issuer from creating security pursuant to an Arran Funding
Note Trust Deed Supplement over specific assets in relation to a Series
in favour of a specific sub-group of Secured Creditors or in respect of
Secured Obligations in relation to such Series. Subject as provided in
the relevant Arran Funding Note Trust Deed Supplement, the provisions of
this Arran Funding Note Trust Deed shall, where the context permits,
apply to any such Security mutatis mutandis as if it were Secured
Property created in respect of Secured Obligations owed to Secured
Creditors hereunder.
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3.3 DUTIES AND TAXES
Subject to Clause 2 (Entire Agreement) of the Common Terms, the Issuer
shall pay all stamp, registration and other similar taxes and duties (if
any) (including any interest and penalties thereon or in connection
therewith) which are payable in Jersey, the United Kingdom or the United
States upon or in connection with the execution and delivery of this
Arran Funding Note Trust Deed and any Arran Funding Note Trust Deed
Supplement, and the Issuer will indemnify the Secured Creditors relating
to such Series (each an "INDEMNIFIED PARTY") on demand from and against
all stamp duty, issue, registration, documentary and other similar taxes
(excluding, without limitation and for the avoidance of doubt, VAT) paid
by any such Indemnified Party in any such jurisdiction or jurisdictions
in connection with any action taken by such Indemnified Party to enforce
the obligations of the Issuer under this Arran Funding Note Trust Deed
or any Arran Funding Note Trust Deed Supplement in respect of such
Series.
3.4 COVENANT OF COMPLIANCE
The Issuer covenants with the Note Trustee separately in respect of each
Series that it will comply with, perform and observe all the provisions
of this Arran Funding Note Trust Deed and the relevant Arran Funding
Note Trust Deed Supplement relating to such Series which are expressed
to be binding on it in respect of such Series. The Conditions in respect
of each Series shall be binding on the Issuer and each Secured Creditor
of such Series. The Note Trustee shall be entitled to enforce the
obligations of the Issuer under the Documents in respect of a Series as
if the same were set out and contained in this Arran Funding Note Trust
Deed.
3.5 ONLY NOTE TRUSTEE TO ACT
For any Series, only the Note Trustee, at its discretion and without
further notice, subject to it being indemnified or secured to its
satisfaction, may pursue the remedies available under the general law or
under this Arran Funding Note Trust Deed to enforce the rights under
this Arran Funding Note Trust Deed or any relevant Arran Funding Note
Trust Deed Supplement of the Secured Creditors relating to such Series.
No Secured Creditor relating to such Series shall be entitled to proceed
directly against the Issuer or the assets of the Issuer to enforce the
performance of any of the provisions of this Arran Funding Note Trust
Deed and any relevant Arran Funding Note Trust Deed Supplement or the
other Documents (if any) relating to such Series unless the Note Trustee
having become bound as aforesaid to take proceedings fails or neglects
to do so within a reasonable period of time and such failure or neglect
is continuing.
3.6 FOLLOWING AN EVENT OF DEFAULT
At any time after any Event of Default or Potential Event of Default
shall have occurred, which has not have been waived by the Note Trustee
or remedied to its satisfaction, the Note Trustee may:
3.6.1 by notice in writing to the Issuer, the Principal Paying Agent
and the other Agents require the Principal Paying Agent and
the other Agents or any of them:
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(a) to act thereafter, until otherwise instructed by the
Note Trustee, as Agents of the Note Trustee under the
provisions of the Security Documents on the terms
provided in the Agency Agreement (with consequential
amendments as necessary and save that the Note
Trustee's liability under any provisions thereof for
the indemnification, remuneration and payment of
out-of-pocket expenses of the Agents shall be limited
to amounts for the time being held by the Note Trustee
on the trusts of the Security Documents in relation to
the Notes on the terms of this Arran Funding Note Trust
Deed and available to the Note Trustee for such
purpose) and thereafter to hold all Notes and all sums,
documents and records held by them in respect of Notes
on behalf of the Note Trustee; and/or
(b) to deliver up all Note Certificates and all sums,
documents and records held by them in respect of Note
Certificates to the Note Trustee or as the Note Trustee
shall direct in such notice PROVIDED THAT such notice
shall be deemed not to apply to any document or record
which the relevant Agent is obliged not to release by
any law or regulation; and
3.6.2 by notice in writing to the Issuer, require the Issuer to make
all subsequent payments in respect of Note Certificates to or
to the order of the Note Trustee and, with effect from the
issue of any such notice until such notice is withdrawn, (so
far as it concerns payments by the Issuer) Clause 12.4
(Payments to Noteholders) shall cease to have effect.
3.7 INTEREST ON THE FLOATING RATE NOTES FOLLOWING EVENT OF DEFAULT
If the Floating Rate Notes become immediately due and repayable under
Condition 10, the rate and/or amount of interest payable in respect of
them will be calculated at the same intervals in accordance with
Condition 6 as if such Notes had not become due and repayable, the first
of which will commence on the expiry of the Interest Period during which
the Notes become so due and repayable in accordance with Conditions 6
and 10 (with consequential amendments as necessary) except that the
Interest Rate need not be published.
3.8 SEPARATE SERIES
Each issue of Notes pursuant to a Final Terms and an Arran Funding Note
Trust Deed Supplement shall form a separate Series of Notes and
accordingly, unless for any purpose the Note Trustee in its absolute
discretion shall otherwise determine, all the provisions of this Arran
Funding Note Trust Deed shall apply mutatis mutandis separately and
independently to each Series and in such Clauses and Schedules the
expressions "NOTES" and "NOTEHOLDERS" shall be construed accordingly.
4. SECURITY
4.1 CREATION OF SECURITY
The Issuer, with full title guarantee and as continuing security for all
the monies and other Liabilities payable or owing by it under the
Security Documents in respect of all Series issued by it, hereby:
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4.1.1 assigns absolutely by way of first fixed security to the Note
Trustee as trustee for the Noteholders all of the Issuer's
right, title and interest in and to, and the entire benefit
of, the Arran Funding Master Framework Agreement, the Agency
Agreement and the Issuer Distribution Account Bank Agreement
(and sums received or recoverable thereunder (save to the
extent they constitute Jersey Assets)); and
4.1.2 charges to the Note Trustee by way of first floating charge,
the whole of its undertaking and assets to the extent that
such undertaking and assets are not effectively encumbered by
the security created by or pursuant to this Arran Funding Note
Trust Deed or any Arran Funding Note Trust Deed Supplement
relating to any Series (save to the extent they constitute
Jersey Assets),
and the Note Trustee shall hold the benefit of the security created by
the assignment and charge pursuant to this Clause 4.1 on trust for
itself, the Noteholders and the other Secured Creditors of all Series,
PROVIDED THAT such security may only be enforced and the floating charge
shall only crystallise in accordance with the provisions of Clause 11
(Enforcement).
4.2 ADDITIONAL SECURITY
Additional security in respect of each Series or (PROVIDED THAT the Note
Trustee consents to the same) in respect of any transaction entered into
by the Issuer relating to or connected with any arrangement for the
issue of any Notes may be created by or pursuant to this Arran Funding
Note Trust Deed and the Arran Funding Note Trust Deed Supplement
relating to such Series.
4.3 PROVISIONS RELATING TO SECURITY
The following provisions of this Clause 4 shall apply to the Security
except as may be otherwise specified in such Security Documents.
4.4 Notwithstanding the Security created pursuant to Clause 4.1 (Creation of
Security) and Clause 4.2 (Additional Security), the Note Trustee
acknowledges that, until it delivers an Enforcement Notice in accordance
with Clause 11 (Enforcement):
4.4.1 payments becoming due to the Issuer under any of the
Documents, together with all other monies payable to the
Issuer pursuant to any other documents or arrangements to
which it is a party, may be made to the Issuer in accordance
with the provisions of the relevant Documents or (as the case
may be) the documents or arrangements concerned;
4.4.2 the Issuer may, subject to Clause 4.4.3, exercise its rights,
powers and discretions and perform its obligations in relation
to the relevant Secured Property and under the Documents in
accordance with the provisions of the Documents or (as the
case may be) such other documents or arrangements; and
4.4.3 amounts standing to the credit of any Issuer Distribution
Account from time to time may be withdrawn therefrom by the
Issuer, but only in accordance with the
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terms of this Arran Funding Note Trust Deed and any relevant
Arran Funding Note Trust Deed Supplement.
4.5 RIGHTS OF SECURED CREDITORS
The entitlement of any Secured Creditor (other than the Note Trustee and
any Receiver appointed by it) to the relevant Secured Property for a
given Series of Notes, unless otherwise specified herein or in the
Common Terms, shall be specified in the relevant Arran Funding Note
Trust Deed Supplement. If the relevant Arran Funding Note Trust Deed
Supplement specifies that any additional party is to be a Secured
Creditor of the Secured Property in relation to such Series, the
beneficial entitlement of such additional Secured Creditor to a security
interest in the relevant Secured Property shall be specified in the
relevant Arran Funding Note Trust Deed Supplement.
4.6 ASSIGNMENT OF ISSUER NTD JERSEY SECURED PROPERTY
To the intent that the Note Trustee (for itself and on trust for the
other Secured Creditors of all Series) shall have the Issuer Jersey
Security Interest in accordance with the Jersey Security Interests Law
as a continuing security for the payment or discharge of the Secured
Obligations of all Series, and subject to Clause 11 (Enforcement), the
Issuer assigns the Issuer NTD Jersey Secured Property to the Note
Trustee (or to such other person acting on its behalf as it shall
nominate) in order to create a security interest therein pursuant to
Article 2(6) of the Jersey Security Interests Law. For the purposes of
perfection of such assignment and in connection with the creation of the
Issuer Jersey Security Interest pursuant hereto, the Issuer covenants to
join with the Note Trustee in giving notice of assignment in the form
set out in Schedule 4 (Notice of Assignment - Issuer NTD Jersey Secured
Property) forthwith upon demand to each person from whom the Issuer (as
assignor) is entitled to claim the Issuer NTD Jersey Secured Property
and to procure the acknowledgement of such parties thereto.
4.7 PARTICULARS OF ISSUER JERSEY SECURITY INTEREST
In respect of the Issuer Jersey Security Interest created pursuant to
Clause 4.6 (Assignment of Issuer NTD Jersey Security Property) and for
the purposes of Article 3 of the Jersey Security Interests Law and for
the avoidance of doubt, it is hereby agreed as follows:
4.7.1 the debtor in respect of the creation of the Issuer Jersey
Security Interest is the Issuer;
4.7.2 the secured party in respect of the creation of the Issuer
Jersey Security Interest is the Note Trustee (acting on behalf
of the Secured Creditors), and all rights in connection
therewith are to be exercised by the Note Trustee (on its
behalf and on behalf of the Secured Creditors) in accordance
with the terms of this Arran Funding Note Trust Deed and the
Jersey Security Interests Law;
4.7.3 the collateral in respect of which the Issuer Jersey Security
Interest is created comprises the Issuer Jersey Secured
Property;
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4.7.4 the events of default in respect of the Issuer Jersey Security
Interest are the events set out in Condition 10 (Events of
Default); and
4.7.5 the obligations in respect of which the Issuer Jersey Security
Interest is created comprise the Secured Obligations of all
Series.
4.8 REASSIGNMENT OF ISSUER JERSEY SECURED PROPERTY
Following discharge in full of the Secured Obligations of which the Note
Trustee has notice, the Note Trustee shall reassign to the Issuer the
Issuer Jersey Secured Property.
4.9 LIMITATIONS ON NOTE TRUSTEE'S LIABILITY
The Note Trustee shall not be responsible for, nor shall it have any
liability with respect to, any loss or theft of any Secured Property,
shall not be obliged to insure or to procure the insurance of any
Secured Property and shall have no responsibility or liability arising
from the fact that any Secured Property is registered in its name or
held by it or in an account with DTC, Euroclear or Clearstream,
Luxembourg or any similar clearing system in accordance with the
system's rules or is otherwise held in safe custody by any bank or
custodian selected by the Note Trustee.
5. NOTE TRUSTEE'S POWERS
5.1 EXTENSION AND VARIATION OF LPA POWERS
For any Series, any time upon or after any part or parts of the Security
becomes enforceable, the Note Trustee may, from time to time:
5.1.1 enter into, make, execute, sign and do all such contracts,
agreements, receipts, payments, assignments, transfers,
conveyances, assurances and things and bring, prosecute,
enforce, defend and abandon all such actions, suits and
proceedings in relation to any Secured Property as it may
think expedient;
5.1.2 exercise all or any of the powers or rights incidental to the
ownership of all or any of the Secured Property and, in
particular but without limiting the generality of the
foregoing, exercise all rights to enforce the Security against
the Secured Property and all rights to attend or vote at any
Meeting of the holders of any Secured Property or to give any
consent or notification or make any declaration in relation to
such securities or any of them;
5.1.3 without prejudice to the generality of the foregoing, exercise
all or any of the powers or rights of the Issuer under or
pursuant to any Secured Property;
5.1.4 without prejudice to the generality of the foregoing, if in
its absolute discretion it is of the opinion that the
interests of the Noteholders and any other beneficiary of the
trusts of this Arran Funding Note Trust Deed will not be
materially prejudiced thereby, agree to the transfer of any
Secured Property to an account with DTC, Euroclear or
Clearstream, Luxembourg or any similar clearing system or the
holding thereof in safe custody by the Note Trustee or by a
bank or custodian selected by the Note Trustee (and shall not
incur any liability by doing so);
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5.1.5 demand, ▇▇▇ for or take any action or institute any
proceedings to recover or obtain payment of any amounts which
may then be due and payable but which remain unpaid under or
in respect of the Secured Property or any part thereof either
in its own name or in the name of the Issuer and shall not be
liable by so doing; and
5.1.6 without prejudice to the generality of the foregoing, act
generally in relation to the Secured Property in such manner
as it may think expedient.
6. APPOINTMENT AND REMOVAL OF RECEIVER AND ADMINISTRATOR
6.1 APPOINTMENT AND REMOVAL OF RECEIVER
6.1.1 Subject to sub-clause 6.1.2 below, at any time after all or
part of the Security in relation to any one or more Series of
Notes issued by the Issuer has become enforceable in
accordance with the Conditions, the Note Trustee may by
writing appoint any person or persons to be a Receiver of the
Secured Property (save to the extent it comprises Jersey
Assets) of any such Series, and may remove any Receiver so
appointed and appoint another in its place. Section 109(1) of
the Law of Property ▇▇▇ ▇▇▇▇ shall not apply in respect of any
such appointment.
6.1.2 Upon receipt of notice of a petition to a court of competent
jurisdiction for an administration order to be made on
application by a creditor or creditors of the Issuer, the Note
Trustee shall use reasonable endeavours, subject to its being
practicable so to do, and provided it has been indemnified
and/or secured to its satisfaction, forthwith to appoint a
Receiver or Receivers (being, for the avoidance of doubt, an
administrative receiver or similar officer falling within the
definition of "ADMINISTRATIVE RECEIVER" under Section 29(2) of
the Insolvency Act 1986) of the whole of the Secured Property
(save to the extent it comprises Jersey Assets) in relation to
all Series of Notes outstanding and issued by the Issuer and
in relation to the floating charge created pursuant to Clause
4 (Security) subject to the immediately following sentence.
The Note Trustee shall only give a notice of crystallisation
in respect of the floating charge and/or appoint an
administrative receiver thereunder or enforce its rights under
the Issuer Jersey Security Interest created pursuant to Clause
4.6 (Assignment of Issuer NTD Jersey Secured Property) if it
has been instructed so to do by the Noteholders for each
outstanding Series and has been indemnified and/or secured to
its satisfaction for its costs of so doing. Subject in the
case of the Issuer Jersey Security Interest created pursuant
to Clause 4.6 (Assignment of Issuer NTD Jersey Secured
Property) to Article 8(6)(b) of the Jersey Security Interests
Law, any proceeds of enforcement of the Issuer Jersey Security
Interest or the floating charge shall be distributed amongst
the Secured Creditors of the relevant Series pro rata in the
proportion which the aggregate Principal Amount Outstanding of
all Notes in respect of each such Series bears to the
Aggregate Principal Amount Outstanding of all Notes of all
such Series (as at the date such monies were received) in
respect of which such monies were received (unless, in
relation to any Series, the relevant Arran Funding Note
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Trust Deed Supplement specifies that any such Series shall be
subordinated to any other Series).
6.1.3 For the purposes of the Issuer Jersey Security Interest
created pursuant to Clause 4.6 (Assignment of Issuer NTD
Jersey Secured Property), service by the Note Trustee of a
notice upon the Issuer specifying the Event of Default in
respect of any one or more Series and, if the default is
capable of remedy, requiring the Issuer to remedy it, shall
constitute notice for the purposes of the Jersey Security
Interests Law of an event of default in respect of the Issuer
Jersey Security Interest and, subject to the provisions of
Articles 6(4) and 8(3) of the Jersey Security Interests Law,
the Note Trustee shall have an immediate power of sale over
the relevant Issuer NTD Jersey Secured Property, without
having to apply to the Royal Court of Jersey for authority to
exercise the same.
6.1.4 The power of sale in respect of the Issuer Jersey Security
Interest created pursuant to Clause 4.6 (Assignment of Issuer
NTD Jersey Secured Property) shall, subject to the Jersey
Security Interests Law, be exercisable by the Note Trustee in
such manner as the Note Trustee may in its discretion deem
appropriate and with all powers of a beneficial owner
notwithstanding that no such beneficial ownership shall have
vested in it as such. Subject to the Jersey Security Interests
Law but otherwise without any limitation, the Note Trustee
may, without liability and subject to the Note Trustee having
been indemnified in full and/or provided with security to its
satisfaction, sell or dispose of the whole or part of the
relevant Issuer NTD Jersey Secured Property at such times and
in such manner and generally on such terms and conditions and
for such consideration as the Note Trustee may think fit. Any
such sale or disposal may be for cash, debentures or other
obligations, shares, stocks, securities or other valuable
consideration and may be payable immediately or by instalment
spread over such a period as the Note Trustee may think fit.
The Note Trustee shall have right of recourse to any monies
forming part of the Secured Property and may, without
liability and subject to the Note Trustee having been
indemnified in full to its satisfaction, apply such monies in
the payment or discharge of the Secured Obligations as if such
monies were proceeds of sale.
6.1.5 The appointment of any Receiver shall include a direction to
the Receiver in relation to those Series in respect of which
the specific Security relating to such service has not become
enforceable to continue all the existing contracts in relation
to such Series and carry on the existing business of the
Issuer in relation to such Series.
6.2 INSOLVENCY ACT REQUIREMENTS
The Note Trustee shall comply with any requirement under the Insolvency
Act that any person appointed to be a Receiver be a licenced insolvency
practitioner.
7. PROVISIONS RELATING TO RECEIVER
7.1 PROVISIONS APPLICABLE TO RECEIVER
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If the Note Trustee appoints a Receiver under Clause 6.1 (Appointment
and removal of Receiver), the following provisions (subject, in the case
of Issuer NTD Jersey Secured Property, to the Jersey Security Interests
Law) shall have effect in relation thereto:
7.1.1 Appointment: such appointment may be made either before or
after the Note Trustee has taken possession of the relevant
Secured Property relating to any Series;
7.1.2 Powers: such Receiver may be vested by the Note Trustee with
such powers and discretions as the Note Trustee may think
expedient and, subject to Clause 6.1 (Appointment and removal
of Receiver), (i) may sell or concur in selling all or any of
such Secured Property, or assign or release all or any of such
Secured Property, to any Person save for itself or any of its
Affiliates, or (ii) continue the business of the Issuer as a
going concern with respect to the Secured Property, in each
case without restriction and on such terms and for such
consideration (if any) as he may think fit and may carry any
such transaction into effect by conveying, transferring and
delivering in the name or on behalf of the Issuer or
otherwise;
7.1.3 Trustee's directions: such Receiver shall in the exercise of
his powers, authorities and discretions conform to regulations
from time to time which may be made by the Note Trustee;
7.1.4 Extension of powers: the exclusion of any part of the Secured
Property of any Series from the appointment of the Receiver
shall not preclude the Note Trustee from subsequently
extending his appointment (or that of the Receiver replacing
him) to that part;
7.1.5 Remuneration of Receiver: the Note Trustee may from time to
time fix the remuneration of such Receiver and direct payment
thereof out of monies accruing to him in the exercise of his
powers as such provided, however, that such remuneration shall
only be payable from such sums as are realised in respect of
those Series the Secured Property in respect of which are the
subject of the appointment of such Receiver.
7.1.6 Security from Receiver: the Note Trustee may from time to time
and at any time require any such Receiver to give security for
the due performance of his duties as the Receiver and may fix
the nature and amount of the security to be so given but the
Note Trustee shall not be bound in any case to require any
such security;
7.1.7 Monies payable to Note Trustee: save insofar as otherwise
directed by the Note Trustee, all monies from time to time
received by such Receiver shall be paid over forthwith to the
Note Trustee to be held by it in accordance with the
provisions of Clause 12.1 (Application of Monies) as
supplemented by the relevant Arran Funding Note Trust Deed
Supplement;
7.1.8 Receiver as agent of Issuer: every such Receiver shall be the
agent of the Issuer for all purposes and the Issuer alone
shall be responsible for his acts, defaults and misconduct,
and the Note Trustee and the Noteholders and the other
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beneficiaries of the trusts of this Arran Funding Note Trust
Deed shall not incur any liability therefor or by reason of
its or their making or consenting to the appointment of a
person as a Receiver under this Arran Funding Note Trust Deed;
and
7.1.9 Holders not liable for acts of Receiver: none of the Note
Trustee and the Noteholders and the other beneficiaries of the
trusts of this Arran Funding Note Trust Deed shall be in any
way responsible for any misconduct or negligence on the part
of any such Receiver.
7.2 MONIES HELD ON TRUST
Subject in the case of the Issuer NTD Jersey Secured Property to the
Jersey Security Interests Law, for each Series, all monies received by
the Note Trustee in respect of the Security or the Secured Property
relating to such Series shall be held by the Note Trustee upon trust to
apply the same as provided in Clause 12.1 (Application of Monies) hereof
and the relevant Arran Funding Note Trust Deed Supplement.
7.3 FURTHER ASSURANCE
For each Series, the Issuer shall execute and do all such assurances,
acts and things as the Note Trustee or any Receiver may require
(including, without limitation, the giving of notices of assignment and
the effecting of filings or registrations in any jurisdiction) for
perfecting or protecting the Security and from time to time and at any
time after the Security or any part thereof has become enforceable shall
execute and do all such assurances, acts and things as the Note Trustee
or any Receiver may require for facilitating the realisation of, or
enforcement of rights in respect of, all or any of the Secured Property
relating to such Series and the exercise of all powers, authorities and
discretions vested in the Note Trustee or in any Receiver of all or any
of the Secured Property relating to such Series.
7.4 BORROWING POWERS
For each Series, subject in the case of the Issuer NTD Jersey Secured
Property to the Jersey Security Interests Law, the Note Trustee may
raise and borrow money on the security of all or any of the Secured
Property relating to such Series for the purpose of defraying any
Liabilities paid or incurred by it in relation to this Arran Funding
Note Trust Deed and any relevant Arran Funding Note Trust Deed
Supplement relating to such Series or in the exercise of any of the
powers contained in this Arran Funding Note Trust Deed and any relevant
Arran Funding Note Trust Deed Supplement relating to such Series. The
Note Trustee may raise and borrow such money at such rate of interest
and generally on such terms and conditions as it shall think fit and may
secure the repayment of the money so raised or borrowed with interest on
the same by mortgaging or otherwise charging all or any of the Secured
Property relating to such Series in such manner and form as the Note
Trustee may think fit (which mortgage or other charge may rank in
priority to, pari passu with or after the Security) and for such
purposes may execute and do all such assurances and things as it may
think fit and no person lending any such money shall be concerned to
enquire as to the propriety or purpose of the
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exercise of any power of the Note Trustee or to see to the application
of any money so raised or borrowed.
7.5 APPOINTMENT OF ATTORNEYS
For the purpose of securing the interests of the Note Trustee and the
other Secured Creditors whether under or pursuant to this Arran Funding
Note Trust Deed or any Document or in relation to the Secured Property
and the performance of its obligations to the Secured Creditors, whether
under or pursuant to this Arran Funding Note Trust Deed or any Document
or in relation to the Secured Property, the Issuer irrevocably for value
and by way of security hereby severally appoints the Note Trustee and
every Receiver of the Secured Property or any part thereof to be its
attorney (with full power to appoint substitutes or to sub-delegate,
including power to authorise the person so appointed to make further
appointments) on behalf of the Issuer and in its name or otherwise, to
execute any document or do any assurance, act or thing which the Issuer
ought to execute or do pursuant to this Arran Funding Note Trust Deed
and generally on its behalf and in its name or otherwise, to execute any
document or do any assurance, act or thing which the Note Trustee or
such Receiver (or such substitute or delegate) may, in its or his
absolute discretion, properly consider appropriate in connection with
the exercise or enforcement of any of the rights, powers, authorities or
discretions conferred on the Note Trustee or the Receiver under or
pursuant to this Arran Funding Note Trust Deed or any Document. The
Issuer hereby ratifies and confirms and agrees to ratify and confirm
whatever any such attorney does or purports to do in the exercise or
purported exercise of all or any of the powers, authorities and
discretions referred to in this Clause 7.5. For the avoidance of doubt,
this power of attorney is granted, inter alia, pursuant to Article 5 of
the Powers of Attorney (Jersey) Law 1995 for the purposes of
facilitating the Note Trustee's powers hereunder and under the Jersey
Security Interests Law in respect of each Issuer Jersey Security
Interest.
7.6 NO LIABILITY
For each Series, the Note Trustee shall not, nor shall any Receiver
appointed as aforesaid nor any attorney, agent or delegate of the Note
Trustee by reason of taking possession of or having assigned to it all
or any of the Secured Property relating to such Series or any other
reason whatsoever and whether as mortgagee in possession or on any other
basis whatsoever be liable to account for anything except actual
receipts or be liable for any loss or damage arising from realisation
of, or enforcement of rights in respect of, all or any of the Secured
Property relating to such Series or any other property, assets, rights
or undertakings of whatsoever nature (including but not limited to any
other Secured Property) whether or not owned by the Issuer or any other
person or in which the Issuer or such other person has an interest, from
any act, default or omission in relation to all or any of the Secured
Property relating to such Series or any other property, assets, rights
or undertakings of whatsoever nature (including but not limited to any
other Secured Property) whether or not owned by the Issuer or any other
person or in which the Issuer or such other person has an interest, or
from any exercise or non-exercise by it of any power, authority or
discretion conferred upon it in relation to all or any of the Secured
Property relating to such Series or any other property, assets, rights
or undertakings of whatsoever nature (including but not limited to any
other Secured Property) whether or
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not owned by the Issuer or any other person or in which the Issuer or
such other person has an interest, by or pursuant to this Arran Funding
Note Trust Deed as supplemented by the relevant Arran Funding Note Trust
Deed Supplement relating to such Series or otherwise.
7.7 POWERS ADDITIONAL TO LPA AND INSOLVENCY ACT POWERS
For each Series, the powers conferred by this Arran Funding Note Trust
Deed in relation to all or any of the Secured Property in respect of
such Series on the Note Trustee or on any Receiver of all or any of the
Secured Property shall (save to the extent they relate to Jersey Assets)
be in addition to and not in substitution for the powers conferred on
mortgagees or receivers under the Law of Property ▇▇▇ ▇▇▇▇ and the
Insolvency Act and where there is any ambiguity or conflict between the
powers contained in such Act and those conferred by this Arran Funding
Note Trust Deed and any relevant Arran Funding Note Trust Deed
Supplement the terms of this Arran Funding Note Trust Deed and any
relevant Arran Funding Note Trust Deed Supplement shall prevail. The
powers conferred by this Arran Funding Note Trust Deed on the Note
Trustee in relation to all or any of the Issuer NTD Jersey Secured
Property shall be subject to the Jersey Security Interests Law.
7.8 PROTECTION OF THIRD PARTIES
For each Series, no person dealing with the Note Trustee or with any
Receiver of all or any of the Secured Property in respect of such Series
appointed by the Note Trustee shall be concerned to enquire whether any
event has happened upon which any of the powers, authorities and
discretions conferred by or pursuant to this Arran Funding Note Trust
Deed and any relevant Arran Funding Note Trust Deed Supplement in
relation to such Secured Property in respect of such Series are or may
be exercisable by the Note Trustee or by any such Receiver or otherwise
as to the propriety or regularity of acts purporting or intended to be
in exercise of any such powers, authorities or discretions and all the
protection to purchasers contained in Sections 104 and 107 of the Law of
Property ▇▇▇ ▇▇▇▇ shall apply to any person purchasing from or dealing
with the Note Trustee or any such Receiver in like manner as if the
statutory powers of sale and of appointing a receiver in relation to
such Secured Property in respect of such Series had not been varied or
extended by this Arran Funding Note Trust Deed and any relevant Arran
Funding Note Trust Deed Supplement.
8. THE NOTES
8.1 GLOBAL NOTE CERTIFICATES
8.1.1 Each Sub-Class of Notes of each Series will be initially
represented by a Global Note Certificate.
8.1.2 Interests in the Global Note Certificate shall be
exchangeable, in accordance with their terms for Individual
Note Certificates.
8.2 INDIVIDUAL NOTE CERTIFICATES
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Individual Note Certificates will not be security printed unless
required by applicable legal and Stock Exchange requirements and will be
substantially in the form set out in Part B of Schedule 1 (Form of
Individual Note Certificate). Individual Note Certificates have the
Conditions attached thereto.
8.3 SIGNATURE
The Note Certificates will be signed manually or in facsimile by a duly
authorised person designated by the Issuer and will be authenticated
manually by or on behalf of the Principal Paying Agent. The Issuer may
use the facsimile signature of a person who at the date such signature
was originally produced was such a duly authorised person even if at the
time of issue of any Note Certificate he no longer holds that office.
Note Certificates so executed and duly authenticated will be binding and
valid obligations of the Issuer.
9. COVENANTS
9.1 COVENANT TO COMPLY WITH THE ARRAN FUNDING NOTE TRUST DEED
The Issuer, in respect of each Series, hereby covenants with the Note
Trustee on the terms of the Issuer Covenants and covenants to comply
with those provisions of the other Documents, this Arran Funding Note
Trust Deed and the Conditions which are expressed to be binding on it
and to perform and observe the same. The Notes are subject to the
provisions contained in the Security Documents, all of which shall be
binding upon the Issuer and the Noteholders and all persons claiming
through or under them respectively.
9.2 NOTE TRUSTEE MAY ENFORCE CONDITIONS
The Note Trustee shall itself be entitled to enforce the obligations of
the Issuer under the Notes and the Conditions as if the same were set
out and contained in this Arran Funding Note Trust Deed which shall be
read and construed as one document with the Notes.
9.3 COMPLIANCE WITH THE FINANCIAL SERVICES AND MARKETS ACT 2000
The Note Trustee represents and warrants that it is an authorised person
under Section 19 of FSMA and that in any case, it does not need to be so
in order to enforce its rights under the Security Documents.
10. AMENDMENTS AND SUBSTITUTION
10.1 WAIVER
The Note Trustee may, without any consent or sanction of the Noteholders
or any other Secured Creditor and without prejudice to its rights in
respect of any subsequent breach, condition, event or act, from time to
time and at any time, but only if and in so far as in its opinion the
interests of the holders of the Most Senior Class of Notes of the
relevant Series shall not be materially prejudiced thereby, authorise or
waive, on such terms and conditions (if any) as shall seem fit and
proper to it, any breach or proposed breach of any of the covenants or
provisions contained in the Security Documents or the Notes or any of
the other Documents in relation to such Series or determine that any
Event of Default or Potential Event of Default in relation to such
Series shall not be treated as
- 20 -
such for the purposes of the Security Documents; any such authorisation,
waiver or determination shall be binding on the Noteholders of such
Series and the other Secured Creditors and, unless the Note Trustee
agrees otherwise, the Issuer shall cause such authorisation, waiver or
determination to be notified to the Noteholders of such Series as soon
as practicable thereafter in accordance with the Conditions; PROVIDED
THAT the Note Trustee shall not exercise any powers conferred upon it by
this Clause in contravention of any express direction by an
Extraordinary Resolution or of a request in writing made by the holders
of not less than 25 per cent. in aggregate principal amount of the Most
Senior Class of Notes then outstanding (but so that no such direction or
request shall affect any authorisation, waiver or determination
previously given or made) or so as to authorise or waive any such breach
or proposed breach relating to any of the matters the subject of the
Basic Terms Modification.
10.2 MODIFICATIONS
The Note Trustee may from time to time and at any time without any
consent or sanction of the Noteholders concur with the Issuer in making
(a) any modification to the Conditions, the Security Documents (other
than in respect of Basic Terms Modification or any provision of the
Security Documents referred to in that specification) or the Notes or
the other Documents or any Relevant Document which in the opinion of the
Note Trustee it may be proper to make provided the Note Trustee is of
the opinion that such modification will not be materially prejudicial to
the interests of the holders of the Most Senior Class of Notes of the
relevant Series or (b) any modification to the Security Documents, the
other Documents, the Conditions, the Notes or any Relevant Documents if
in the opinion of the Note Trustee such modification is of a formal,
minor or technical nature or made to correct an error which in the sole
opinion of the Note Trustee is considered to be such. Any such
modification shall be binding on the Noteholders and, unless the Note
Trustee otherwise agrees, the Issuer shall cause such modification to be
notified to the Noteholders as soon as practicable thereafter in
accordance with the Conditions and the other Documents.
10.3 SUBSTITUTION
10.3.1 Procedure: The Note Trustee may, without the consent of the
Noteholders or other Secured Creditors, agree to the
substitution, in place of the Issuer (or of any previous
substitute under this Clause) of any other body corporate (the
"SUBSTITUTED ISSUER") as the principal debtor in respect of
the Security Documents, the Notes and the other Secured
Obligations of any Series if:
(a) an Arran Funding Note Trust Deed is executed or some
other written form of undertaking is given by the
Substituted Issuer to the Note Trustee, in form and
manner satisfactory to the Note Trustee, agreeing to be
bound by the terms of the Security Documents, the Notes
with any consequential amendments which the Note
Trustee may deem appropriate as fully as if the
Substituted Issuer had been named in the Security
Documents and the other Documents and on the Notes as
the principal debtor in place of the Issuer (or of any
previous substitute under this Clause);
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(b) the Issuer (or any previous substitute) and the
Substituted Issuer execute such other deeds, documents
and instruments (if any) as the Note Trustee may
require in order that the substitution is fully
effective and comply with such other requirements as
the Note Trustee may direct in the interests of the
Noteholders and the other Secured Creditors;
(c) where all or substantially all the assets of the Issuer
or any previous substitute are transferred to the
Substituted Issuer, the Substituted Issuer:
(i) acquires the Issuer's (or such previous
substitute's) equity of redemption in the
Secured Property (other than the undertaking of
the Issuer or any previous substitute);
(ii) becomes a party to all the Documents to which
the Issuer (or such previous substitute) is a
party;
(iii) acknowledges the Security and the other matters
created and effected in respect thereof pursuant
to the Security Documents; and
(iv) takes all such action as the Note Trustee may
require so that the Secured Property continues
to be subject to the Security and the other
matters created and effected in respect thereof
pursuant to the Security Documents and otherwise
effected or maintained in all respects
corresponding to those previously subsisting on
the part of the Issuer or such previous
substitute;
(d) (unless all or substantially all of the assets of the
Issuer or any previous substitute are transferred to
the Substituted Issuer) an unconditional and
irrevocable guarantee limited in recourse to and
secured only on the Secured Property in form and
substance satisfactory to the Note Trustee is given by
the Issuer (or such previous substitute) of the
obligations of any Substituted Issuer under the
Security Documents, the Notes and the other Documents;
(e) the Note Trustee is provided with a legal opinion that
(i) the Substituted Issuer has obtained all
governmental and regulatory approvals and consents
necessary for its assumption of liability as principal
debtor in respect of the Security Documents, the Notes
and the other Secured Obligations in place of the
Issuer (or such previous substitute as aforesaid) and
(ii) such approvals and consents are at the time of
substitution in full force and effect;
(f) the Substituted Issuer is a single purpose company
similar to, and with like constitution as, and having
substantially the same restrictions and prohibitions on
its activities and operations as the Issuer, undertakes
to be bound by provisions corresponding to those set
out in the Conditions and satisfies the SPV Criteria;
(g) without prejudice to the rights of reliance of the Note
Trustee under sub-clause 10.3.4 (Directors'
certification) the Note Trustee is satisfied that
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the said substitution is not materially prejudicial to
the interests of all the holders of Most Senior Class
of Notes outstanding of each Series;
(h) the Note Trustee is provided with any further legal
opinions in respect of such substitution in form and
substance satisfactory to it; and
(i) each of the Rating Agencies confirms in writing to the
Note Trustee that each of its ratings of all Notes in
issue will not be lowered as a result of such
substitution.
10.3.2 Change of governing law: In connection with any proposed
substitution of the Issuer or any previous substitute, the
Note Trustee may, in its absolute discretion and without the
consent of the Noteholders or the other Secured Creditors
agree to a change of the law from time to time governing the
Notes and/or the Security Documents PROVIDED THAT such change
of law, in the opinion of the Note Trustee, would not be
materially prejudicial to the interests of all the holders of
the Most Senior Class of Notes outstanding of each Series.
10.3.3 Extra duties: The Note Trustee shall be entitled to refuse to
approve any Substituted Issuer if, pursuant to the law of the
country of incorporation of the Substituted Issuer, the
assumption by the Substituted Issuer of its obligations
hereunder imposes (in the opinion of the Note Trustee)
responsibilities and Liabilities on the Note Trustee over and
above those which have been assumed under the Security
Documents;
10.3.4 Directors' certification: If any two directors of the
Substituted Issuer certify that immediately prior to the
assumption of its obligations as Substituted Issuer under the
Security Documents the proposed Substituted Issuer is solvent
after taking account of all prospective and contingent
liabilities resulting from its becoming the Substituted
Issuer, the Note Trustee need not have regard to the financial
condition, profits or prospects of the proposed Substituted
Issuer or compare the same with those of the Issuer (or of any
previous substitute under this Clause) or have regard to the
possibility of avoidance of the Security or any part thereof
on the grounds of insolvency or the proximity to insolvency,
liquidation or some other event of the creation of the
Security;
10.3.5 Interests of Noteholders: In connection with any proposed
substitution, the Note Trustee shall not have regard to, or be
in any way liable for, the consequences of such substitution
for individual Noteholders or the other Secured Creditors
resulting from their being for any purpose domiciled or
resident in, or otherwise connected with, or subject to the
jurisdiction of, any particular territory. No Noteholder or
other Secured Creditor shall, in connection with any such
substitution, be entitled to claim from the Issuer any
indemnification or payment in respect of any tax consequence
of any such substitution upon individual Noteholders or other
Secured Creditors.
10.3.6 Release of Issuer: Any agreement by the Note Trustee pursuant
to sub-clause 10.3.1 (Procedure) shall, if so expressed,
operate to release the Issuer (or such previous substitute)
from all of its obligations as principal debtor under the
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Notes, the Security Documents and the other Secured
Obligations (but without prejudice to its liabilities under
any guarantee given pursuant to paragraph (d) of sub-clause
10.3 (Substitution)).
10.3.7 Completion of substitution: Upon the execution of such
documents and compliance with the said requirements, the
Substituted Issuer shall be deemed to be named in the Security
Documents, the Notes and the other Documents as the principal
debtor in place of the Issuer (or of any previous substitute
under this Clause) and the Security Documents, the Notes and
the other Documents shall thereupon be deemed to be amended in
such manner as shall be necessary to give effect to the
substitution and without prejudice to the generality of the
foregoing any references in the Security Documents, Notes and
the other Documents to the Issuer shall be deemed to be
references to the Substituted Issuer.
11. ENFORCEMENT
11.1 SECURITY ENFORCEABLE
The Security in relation to any Series shall become enforceable upon the
Note Trustee giving an Enforcement Notice pursuant to the terms of this
Arran Funding Note Trust Deed and the relevant Arran Funding Note Trust
Deed Supplement to the Issuer subsequent to an Event of Default in
respect of such Series or as otherwise provided in the applicable Final
Terms and/or the Arran Funding Note Trust Deed Supplement for such
Series.
11.2 ENFORCEMENT NOTICE
The Note Trustee shall not be bound to give any Enforcement Notice in
respect of any Series of Notes, pursuant to Clause 11.1 (Security
Enforceable), unless:
11.2.1 in relation to the Security created pursuant to any Arran
Funding Note Trust Deed Supplement, it shall have been so
requested in writing by the holders of at least one-quarter in
aggregate principal amount of the Notes of the Most Senior
Class outstanding of the relevant Series or it shall have been
so directed by an Extraordinary Resolution of the holders of
the Notes of the Most Senior Class outstanding of the relevant
Series;
11.2.2 in relation to the Security created pursuant to Clause 4.1
(Creation of Security) and Clause 4.6 (Assignment of Issuer
NTD Jersey Secured Property), it shall have been requested in
writing by the holders of a least one-quarter in aggregate
principal amount of the Most Senior Class of Notes outstanding
of all Series or it shall have been directed by an
Extraordinary Resolution of such holders; and
11.2.3 it shall have been indemnified and/or secured to its
satisfaction,
and PROVIDED THAT the Note Trustee shall not be held liable for the
consequence of the taking of any such action and may take such action
without having regard to the effect of such action on individual
Noteholders or any other beneficiary of this Arran Funding
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Note Trust Deed in relation to that Series or all or any of the
Noteholders or any other beneficiary of the Security Documents in
relation to any other Series.
11.3 LEGAL PROCEEDINGS
At any time after the service of an Enforcement Notice pursuant to
Clause 11.1 (Security Enforceable) and Clause 11.2 (Enforcement Notice)
and in accordance with the terms of these Clauses, the Note Trustee:
11.3.1 may at its discretion (but without being under any obligation
to do so) and without further notice; or
11.3.2 shall, if:
(a) so instructed in writing by the holders of at least
one-quarter in aggregate principal amount of the Notes
of the Most Senior Class outstanding of the relevant
Series; or
(b) it shall have been so directed by an Extraordinary
Resolution of the holders of the Notes of the Most
Senior Class outstanding of the relevant Series; and
(c) it shall have been indemnified and/or secured to its
satisfaction,
recover judgment in its own name and as trustee of an express trust
against the Issuer for the whole amount of principal and interest and
any other sums secured under the Security Documents remaining unpaid and
take:
11.3.3 such other steps and/or institute such proceedings as it may
think fit against, or in relation to, the Issuer, and/or
11.3.4 such steps as it may think fit to enforce the security created
in favour of the Note Trustee by, and contained in, this Arran
Funding Note Trust Deed and any relevant Arran Funding Note
Trust Deed Supplement, and/or
11.3.5 such steps as it may think fit to enforce the Issuer's
obligations under this Arran Funding Note Trust Deed and any
relevant Arran Funding Note Trust Deed Supplement including,
without limitation, to enforce repayment of the relevant Notes
together with accrued interest and any other monies payable
pursuant to this Arran Funding Note Trust Deed and any
relevant Arran Funding Note Trust Deed Supplement, PROVIDED
THAT the Note Trustee shall be bound by the terms of this
Arran Funding Note Trust Deed and the relevant Arran Funding
Note Trust Deed Supplement in determining the priority in
which any monies received by it shall be applied. In enforcing
the security created in favour of the Note Trustee by and
contained in this Arran Funding Note Trust Deed (other than in
relation to the Floating Charge created
pursuant to Clause 4 (Security), which shall be enforced as
detailed in Clause 11.2 (Enforcement Notice)), the Note
Trustee shall only take steps to realise assets which are (i)
secured both by this Arran Funding Note Trust Deed and the
relevant Arran Funding Note Trust Deed Supplement for the
relevant Series which is the subject of enforcement
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and/or (ii) not already secured by a fixed charge in favour of
any other Series pursuant to the relevant Arran Funding Note
Trust Deed Supplement.
11.4 POWER OF SALE
Subject in the case of the Issuer NTD Jersey Secured Property to the
Jersey Security Interest Law, at any time after the Security in relation
to any Series has become enforceable, the Note Trustee may take
possession of all or any of the Secured Property in relation to such
Series and may sell, call in, collect and convert into money, and
enforce any rights it may have in respect of, all or any of the Secured
Property relating to the relevant Series of Notes in respect of which
the Security has become enforceable, in such manner and upon such terms
as the Note Trustee may think fit and so that the power of sale
conferred by Section 101 of the Law of Property ▇▇▇ ▇▇▇▇ (but free from
the restrictions imposed by Sections 93 and 103 of such Act) shall apply
and have effect on the basis that the Security Documents constitute a
mortgage within the meaning of that Act and the Note Trustee is a
mortgagee exercising the power of sale conferred upon mortgagees by that
Act; provided, however, that the statutory power of sale (as extended by
the Security Documents) and the other powers of the Note Trustee
referred to above shall, in relation to the property which is secured by
the Issuer pursuant to Clause 4.1 (Creation of Security), only be
exercisable by the Note Trustee after the Security in respect of all
Notes then outstanding and issued by such Issuer has become enforceable.
11.5 EVIDENCE OF DEFAULT
Should the Note Trustee take legal or other proceedings against the
Issuer to enforce any of the provisions of the Notes, or any of them or
any of the provisions of this Arran Funding Note Trust Deed and any
relevant Arran Funding Note Trust Deed Supplement, proof therein that,
as regards any Note of any Series, the Issuer has made default in paying
any principal or interest due in respect of such Note shall (unless the
contrary be proved) be sufficient evidence that the Issuer has made the
like default as regards all other Notes of such Series in respect of
which the relevant payment is then due and payable. The Note Trustee may
file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Note Trustee
and the Secured Creditors allowed in any judicial proceedings relating
to the Issuer, its auditors or its property.
11.6 ENFORCEMENT OF SECURITY
The Note Trustee may only enforce the Security created pursuant to
Clause 4.1 (Creation of Security) and Clause 4.6 (Assignment of Issuer
NTD Jersey Secured Property) if so instructed by the Holders of the Most
Senior Class of Notes outstanding of each and every Series at a Meeting
duly convened and held in accordance with Schedule 3 (Provisions for
Meetings of Noteholders).
11.7 CREDITOR INFORMATION
In the event that the Note Trustee enforces the Security as set out in
this Clause 11 (Enforcement), the Issuer acknowledges, that on demand
from the Note Trustee, it will provide to the Note Trustee a certificate
detailing the amounts owed by the Issuer to third
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party creditors. For the avoidance of doubt, the Note Trustee will be
entitled to rely on this certificate absolutely and without further
investigation.
12. APPLICATION OF MONIES
12.1 APPLICATION OF MONIES
All monies received by the Note Trustee in respect of the Notes of any
Series or amounts payable under the Security Documents will despite any
appropriation of all or part of them by the Issuer (including any monies
which represent principal or interest in respect of Notes which have
become void under the Conditions) be held by the Note Trustee on trust
to apply them (subject to Clause 12.2 (Investment of Monies)), if
received prior to the delivery of an Enforcement Notice, in accordance
with the priority of application of amounts prior to enforcement of the
Security contained in the relevant Arran Funding Note Trust Deed
Supplement and, if received after delivery of an Enforcement Notice in
accordance with the order of priority contained in Condition 4
(Application of Proceeds Upon Enforcement), subject in the case of the
Issuer NTD Jersey Secured Property to the Jersey Security Interests Law.
12.2 INVESTMENT OF MONIES
If, upon enforcement of the Security, the amount of the monies at any
time available for payment of principal and interest in respect of the
Notes of any Series under Clause 12.1 (Application of Monies) shall be
less than a sum sufficient to pay at least one-tenth of the Principal
Amount Outstanding of the Notes of such Series then outstanding, the
Note Trustee may, at its discretion, subject in the case of the Issuer
NTD Jersey Secured Property to the Jersey Security Interests Law, invest
such monies upon some or one of the investments hereinafter authorised
with power from time to time, with like discretion, to vary such
investments; and such investment with the resulting income thereof may
be accumulated until the accumulations together with any other funds for
the time being under the control of the Note Trustee and available for
the purpose shall amount to a sum sufficient to pay at least one-tenth
of the Principal Amount Outstanding of the Notes of such Series then
outstanding and such accumulation and funds (after deduction of any
taxes and any other deductibles applicable thereto) shall then be
applied in accordance with the order of priority contained in Condition
4 (Application of Proceeds Upon Enforcement).
12.3 AUTHORISED INVESTMENTS
Any monies which under the Security Documents may be invested by the
Note Trustee may be invested in the name or under the control of the
Note Trustee in any of the investments for the time being authorised by
English law for the investment by trustees of trust monies or in any
other investments, whether similar to those aforesaid or not, which may
be selected by the Note Trustee or by placing the same on deposit in the
name or under the control of the Note Trustee with such bank or other
financial institution as the Note Trustee may think fit and in such
currency as the Note Trustee in its absolute discretion may determine
and the Note Trustee may at any time vary or transfer any of such
investments for or into other such investments or convert any monies so
deposited into any other currency and shall not be responsible for any
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Liability occasioned by reason of any such investments or such deposit
whether by depreciation in value, fluctuation in exchange rates or
otherwise.
12.4 PAYMENT TO NOTEHOLDERS
The Note Trustee shall, after the delivery of an Enforcement Notice,
give notice to the Noteholders in accordance with the Conditions of the
date fixed for any payment under Clause 12.1 (Application of Monies).
Any payment to be made in respect of the Notes of any Series by the
Issuer or the Note Trustee may be made in the manner provided in the
Conditions, the Agency Agreement and the Security Documents and any
payment so made shall be a good discharge to the extent of such payment
by the Issuer or the Note Trustee (as the case may be).
12.5 PRODUCTION OF NOTES CERTIFICATES
Upon any payment under Clause 12.4 (Payment to Noteholders) of principal
or interest, the Note or Note Certificate in respect of which such
payment is made shall, if the Note Trustee so requires, be produced to
the Note Trustee or the Paying Agent by or through whom such payment is
made and the Note Trustee shall (a) in the case of part payment, require
the Registrar to make a notation on the Register of the amount and date
of payment or (b) in the case of payment in full, cause the relevant
Note Certificate to be surrendered or shall cancel or procure the same
to be cancelled and shall certify or procure the certification of such
cancellation.
13. FURTHER ASSURANCES
The Note Trustee (at the expense of the Issuer) agrees to do and
perform, from time to time, any and all acts and to execute any and all
further instruments required or reasonably requested by the Issuer more
fully to effect the purposes of this Arran Funding Note Trust Deed and
each Arran Funding Note Trust Deed Supplement.
14. TERMS OF APPOINTMENT
Subject, in the case of the Issuer Jersey Secured Property, to the
Jersey Security Interests Law, the Note Trustee shall have all powers
conferred upon trustees by the Trustee Acts (which provisions shall
except as expressly provided in this clause be in lieu of the provisions
contained in section 315(a) of the TIA) and by way of supplement to the
Trustee ▇▇▇ ▇▇▇▇ and the Trustee ▇▇▇ ▇▇▇▇, it is expressly declared as
follows:
14.1.1 ADVICE: The Note Trustee may in relation to this Arran Funding
Note Trust Deed and any relevant Arran Funding Note Trust Deed
Supplement act on the opinion or advice of or a certificate or
any information obtained from any lawyer, banker, valuer,
surveyor, broker, auctioneer, accountant or other expert
(whether obtained by the Note Trustee, the Issuer, any Agent
or any other Secured Creditor) and shall not be responsible
for any liability occasioned by so acting; any such opinion,
advice, certificate or information may be sent or obtained by
letter, telegram, telex, e-mail or facsimile transmission and
the Note Trustee shall not, in the absence of negligence or
wilful misconduct or fraud on the part of the Note Trustee, be
liable for acting on any opinion, advice,
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certificate or information purporting to be so conveyed
although the same contains some error or is not authentic and
whether or not addressed to the Note Trustee;
14.1.2 CERTIFICATE OF DIRECTORS OR AUTHORISED SIGNATORIES: the Note
Trustee may call for and shall be at liberty to accept a
certificate signed by two Directors and/or two Authorised
Signatories of the Issuer (or other person duly authorised on
its behalf):
(a) as to any fact or matter prima facie within the
knowledge of the Issuer; and
(b) a like certificate to the effect that any particular
dealing, transaction or step or thing is, in the
opinion of the person so certifying, expedient;
as sufficient evidence that such is the case and the Note
Trustee shall not be bound in any such case to call for
further evidence or be responsible for any Liability that may
be occasioned by its failing so to do;
14.1.3 RESOLUTION OR DIRECTION OF NOTEHOLDERS: the Note Trustee shall
not be responsible for acting upon any resolution purporting
to be a Written Resolution or to have been passed at any
Meeting in respect whereof minutes have been made and signed
or upon a direction of a specified percentage of Noteholders,
even though it may subsequently be found that there was some
defect in the constitution of the Meeting or the passing of
the resolution or the making of the directions or that for any
reason the resolution purporting to be a Written Resolution or
to have been passed at any Meeting or the making of the
directions was not signed by the proper persons or was not
valid or binding upon the Noteholders;
14.1.4 RELIANCE ON CERTIFICATION OF CLEARING SYSTEM: the Note Trustee
may call for any certificate or other documents issued by DTC,
Euroclear, Clearstream, Luxembourg or any other relevant
clearing system in relation to any matter. Any such
certificate or other document shall, in the absence of
manifest error, be conclusive and binding for all purposes.
Any such certificate or other document may comprise any form
of statement or print out of electronic records provided by
the relevant clearing system (including Euroclear's EUCLID or
Clearstream, Luxembourg's Cedcom system) in accordance with
its usual procedures and in which the holder of a particular
principal or nominal amount of Notes is clearly identified
together with the amount of such holding. The Note Trustee
shall not be liable to any person by reason of having accepted
as valid or not having rejected any certificate or other
document purporting to be issued by DTC, Euroclear,
Clearstream, Luxembourg or any other relevant clearing system
and subsequently found to be forged or not authentic;
14.1.5 CERTIFICATES OF OTHER PARTIES TO THE DOCUMENTS: the Note
Trustee shall be entitled to call for and rely upon a
certificate, reasonably believed by it to be genuine, of:
- 29 -
(a) any of the parties to any of the Documents, in respect
of every matter and circumstance for which a
certificate is expressly provided for under the
Security Documents, the Conditions or the other
Documents; and
(b) the Auditors or, if applicable, the liquidator (if any)
of the Issuer as to the amounts to be paid to Secured
Creditors in accordance with the order of priority of
application of amounts prior to and following
enforcement provided in the relevant Arran Funding Note
Trust Deed Supplement;
as sufficient evidence thereof, and the Note Trustee shall not
be bound in any such case to call for further evidence or be
responsible for any loss, liability or inconvenience that may
be occasioned by its failing to do so;
14.1.6 NOTE TRUSTEE NOT RESPONSIBLE FOR INVESTIGATIONS: the Note
Trustee shall not be responsible for, or for investigating any
matter which is the subject of, any recital, statement,
representation, warranty or covenant of any person contained
in the Security Documents, the other Documents, the Notes or
any other agreement or document relating to the transactions
herein or therein contemplated or for the execution, legality,
effectiveness, adequacy, genuineness, validity, enforceability
or admissibility in evidence thereof and shall assume the
accuracy and correctness thereof nor shall the Note Trustee,
by execution of the Security Documents, be deemed to make any
representation as to the validity, sufficiency or
enforceability of either the whole or any part of the Security
Documents;
14.1.7 NO LIABILITY AS A RESULT OF THE DELIVERY OF A CERTIFICATE: the
Note Trustee shall have no liability whatsoever for any
Liability directly or indirectly suffered or incurred by the
Issuer, Secured Creditor or any other person as a result of
any determination as to material prejudice pursuant to
sub-clause 14.2.1 (Note Trustee's determination) on the basis
of an opinion formed by it in good faith;
14.1.8 NOTES HELD BY THE ISSUER: in the absence of knowledge or
express notice to the contrary, the Note Trustee may assume
without enquiry (other than requesting a certificate of the
Issuer) under this sub-clause 14.1.8 (Notes held by Issuer),
that no Notes are for the time being held by or for the
benefit of the Issuer;
14.1.9 FORGED NOTES: the Note Trustee shall not be liable to the
Issuer or any Noteholder by reason of having accepted as valid
or not having rejected any Note Certificate as such and
subsequently found to be forged or not authentic;
14.1.10 ENTRY ON THE REGISTER: the Note Trustee shall not be liable to
the Issuer or any Noteholder by reason of having accepted as
valid or not having rejected any entry on the Register later
found to be forged or not authentic and can assume for all
purposes in relation hereto that any entry on the Register is
correct;
14.1.11 EVENTS OF DEFAULT: Except to the extent required pursuant to
section 315(b) of the TIA, the Note Trustee shall not be bound
to give notice to any person of the execution of the Security
Documents or to take any steps to ascertain whether any Event
of Default or Potential Event of Default has happened and,
until it
- 30 -
shall have actual knowledge or express notice to the contrary,
the Note Trustee shall be entitled to assume that no such
Event of Default or Potential Event of Default has happened
and that the Issuer is observing and performing all the
obligations on its part contained in the Notes and under the
Security Documents and the other Documents and no event has
happened as a consequence of which any of the Notes may become
repayable;
14.1.12 INTERESTS OF ACCOUNTHOLDERS OR PARTICIPANTS: so long as any
Note is held by or on behalf of Euroclear or Clearstream,
Luxembourg, in considering the interests of Noteholders the
Note Trustee may consider the interests (either individual or
by category) of its accountholders or participants with
entitlements to any such Note as if such accountholders or
participants were the holder(s) thereof;
14.1.13 LEGAL OPINIONS: the Note Trustee shall not be responsible to
any person for failing to request, require or receive any
legal opinion relating to any Notes or for checking or
commenting upon the content of any such legal opinion;
14.1.14 PROGRAMME LIMIT: the Note Trustee shall not be concerned, and
need not enquire, as to whether or not any Notes are issued in
breach of the Programme Limit;
14.1.15 NOTE TRUSTEE NOT RESPONSIBLE: the Note Trustee shall not be
responsible for the execution, delivery, legality,
effectiveness, adequacy, genuineness, validity, enforceability
or admissibility in evidence of this Arran Funding Note Trust
Deed or any other document relating thereto and shall not be
liable for any failure to obtain any rating of Notes (where
required), any licence, consent or other authority for the
execution, delivery, legality, effectiveness, adequacy,
genuineness, validity, performance, enforceability or
admissibility in evidence of this Arran Funding Note Trust
Deed or any other document relating thereto. In addition,
subject to Clause 14.6 below, the Note Trustee shall not be
responsible for the effect of the exercise of any of its
powers, duties and discretions thereunder;
14.1.16 FREEDOM TO REFRAIN: notwithstanding anything else contained in
the Security Documents or the other Documents, the Note
Trustee may refrain from doing anything which would or might
in its opinion be contrary to any law of any jurisdiction or
any directive or regulation of any agency or any state of
which would or might otherwise render it liable to any person
and may do anything which is, in its opinion, necessary to
comply with any such law, directive or regulation; and
14.1.17 RIGHT TO DEDUCT OR WITHHOLD: notwithstanding anything
contained in the Security Documents or any of the other
Documents, to the extent required by any applicable law, if
the Note Trustee is or will be required to make any deduction
or withholding from any distribution or payment made by it
under the Security Documents or if the Note Trustee is or will
be otherwise charged to, or is or may become liable to, tax
(excluding, for the purposes of this sub-clause 14.1.17, VAT
and any tax on its profits) as a consequence of performing its
duties under the Security Documents or the other Documents
whether as
- 31 -
principal, agent or otherwise, and whether by reason of any
assessment, prospective assessment or other imposition of
liability to taxation of whatsoever nature and whensoever made
upon the Note Trustee, and whether in connection with or
arising from any sums received or distributed by it or to
which it may be entitled under this Arran Funding Note Trust
Deed (other than in connection with its remuneration as
provided for herein or its profits) or any investments or
deposits from time to time representing the same, including
any income or gains arising therefrom or any action of the
Note Trustee in connection with the trusts of this Arran
Funding Note Trust Deed (other than the remuneration herein
specified or its profits) or otherwise, then the Note Trustee
shall notify the Issuer of such requirement prior to making
the proposed retention and thereafter shall be entitled to
make such deduction or withholding or, as the case may be, to
retain out of sums received by it an amount sufficient to
discharge any liability to tax (excluding VAT and any tax on
its profits) which relates to sums so received or distributed
or to discharge any such other liability of the Note Trustee
to such tax from the funds held by the Note Trustee upon the
trusts of the Security Documents;
14.1.18 ADVICE REGARDING MARKET PRACTICE: the Note Trustee may rely
and act upon the advice of an investment bank when having
regard to the then current market practice or any other matter
which falls within Conditions 6 (Interest), 7 (Redemption and
Purchase) and 8 (Payments) and shall not be responsible for
any loss occasioned by so acting; and
14.1.19 INFORMATION: it is a term of the trust created in this Arran
Funding Note Trust Deed, that, except where expressly provided
otherwise, the Note Trustee receives any information provided
to it for information purposes only and the Note Trustee will
not and is not expected routinely to review or monitor such
information.
14.2 NOTE TRUSTEE'S POWERS AND DUTIES
14.2.1 NOTE TRUSTEE'S DETERMINATION: The Note Trustee may determine
whether or not a default in the performance or observance by
the Issuer of any obligation under the provisions of the
Security Documents or contained in the Notes or any other
Documents is capable of remedy and/or materially prejudicial
to the interests of the Noteholders and if the Note Trustee
shall certify that any such default is, in its opinion, not
capable of remedy and/or materially prejudicial to the
interests of the Noteholders such certificate shall be
conclusive and binding upon the Issuer and the Secured
Creditors;
14.2.2 DETERMINATION OF QUESTIONS: the Note Trustee as between itself
and the other Secured Creditors shall have full power to
determine all questions and doubts arising in relation to any
of the provisions of the Security Documents and every such
determination, whether made upon a question actually raised or
implied in the acts or proceedings of the Note Trustee, shall
be conclusive and shall bind the Note Trustee and the other
Secured Creditors;
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14.2.3 NOTE TRUSTEE'S DISCRETION: the Note Trustee shall (save as
expressly otherwise provided herein) as regards all the
trusts, powers, authorities and discretions vested in it by
this Arran Funding Note Trust Deed or by operation of law have
absolute and uncontrolled discretion as to the exercise or
non-exercise thereof and the Note Trustee shall not be
responsible for any Liability that may result from the
exercise or non-exercise thereof but, whenever the Note
Trustee is under the provisions of this Arran Funding Note
Trust Deed bound to act at the request or direction of the
Noteholders, the Note Trustee shall nevertheless not be so
bound unless first indemnified and/or provided with security
to its satisfaction against all actions, proceedings, claims
and demands to which it may render itself liable and all
costs, charges, damages, expenses and liabilities which it may
incur by so doing. Without limiting the general statement
above, the Note Trustee may refrain from taking any action in
any jurisdiction if the taking of such action in that
jurisdiction would, in its opinion based upon legal advice in
the relevant jurisdiction, be contrary to any law of that
jurisdiction or, to the extent applicable, of England.
Furthermore, the Note Trustee may also refrain from taking
such action if it would otherwise render it liable to any
person in that jurisdiction or England or if, in its opinion
based upon such legal advice, it would not have the power to
do the relevant thing in that jurisdiction by virtue of any
applicable law in that jurisdiction or in England or if it is
determined by any court or other competent authority in that
jurisdiction or in England that it does not have such power;
14.2.4 NOTE TRUSTEE'S CONSENT: any consent given by the Note Trustee
for the purposes of the Security Documents, the Notes and the
other Documents may be given on such terms and subject to such
conditions (if any) as the Note Trustee may require and
(notwithstanding any provision to the contrary) may be given
retrospectively;
14.2.5 CONVERSION OF CURRENCY: where it is necessary or desirable for
any purpose in connection with the Security Documents to
convert any sum from one currency to another it shall (unless
otherwise provided by the Security Documents or required by
law) be converted at such rate(s) of exchange, in accordance
with such method and as at such date for the determination of
such rate(s) of exchange as may be specified by the Note
Trustee in its absolute discretion as relevant and any rate of
exchange, method and date so specified shall be binding on the
Issuer, the Noteholders and the other Secured Creditors;
14.2.6 APPLICATION OF PROCEEDS: the Note Trustee shall not be
responsible for the receipt or application by the Issuer of
the proceeds of the issue of the Notes, the exchange of any
Global Note Certificate for Individual Note Certificates or
the delivery of any Note or Note Certificate to the persons
entitled to them;
14.2.7 AGENTS: the Note Trustee may, in the conduct of the trusts
created pursuant to the Security Documents instead of acting
personally, employ and pay an agent on any terms, whether or
not a lawyer or other professional person, to transact or
conduct, or concur in transacting or conducting, any business
and to do or concur in doing all acts required to be done by
the Note Trustee (including the
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receipt and payment of money) and, if the Note Trustee
exercises reasonable care in selecting any such person, the
Note Trustee shall not be responsible for any Liability
incurred by reason of the misconduct, omission or default on
the part of any person appointed by it hereunder or be bound
to supervise the proceedings or acts of, and shall not in any
way or to any extent be responsible for any liability incurred
by any misconduct or default on the part of, any such person;
14.2.8 DELEGATION: the Note Trustee may, in the execution and
exercise of all or any of the trusts, powers, authorities and
discretions vested in it by the Security Documents, act by
responsible officer(s) for the time being of the Note Trustee
and the Note Trustee may also whenever it thinks fit, whether
by power of attorney or otherwise, delegate to any person(s)
or fluctuating body of persons (whether being a joint trustee
of this Arran Funding Note Trust Deed or not) all or any of
the trusts, powers, authorities and discretions vested in it
by the Security Documents and any such delegation may be made
upon such terms and conditions and subject to such regulations
(including power to sub-delegate with the consent of the Note
Trustee) as the Note Trustee may think fit in the interests of
the Noteholders and, if the Note Trustee exercises reasonable
care in selecting any such person, the Note Trustee shall not
be bound to supervise the proceedings or acts of and shall not
in any way or to any extent be responsible for any loss,
liability, expense, demand, cost, claim or proceedings
incurred by reason of the misconduct, omission or default on
the part of such delegate or sub-delegate;
14.2.9 CUSTODIANS AND NOMINEES: the Note Trustee may appoint and pay
any person to act as a custodian or nominee on any terms in
relation to such assets of the trust as the Note Trustee may
determine, including for the purpose of depositing with a
custodian this Arran Funding Note Trust Deed or any other
Documents and the Note Trustee shall not be responsible for
any Liability incurred by reason of the misconduct, omission
or default on the part of any person appointed by it hereunder
or be bound to supervise the proceedings or acts of any such
person; the Note Trustee is not obliged to appoint a custodian
if the Note Trustee invests in securities payable to bearer;
14.2.10 CONFIDENTIAL INFORMATION: the Note Trustee shall not (unless
required by law or ordered so to do by a court of competent
jurisdiction) be required to disclose to any Noteholder
confidential information or other information made available
to the Note Trustee by the Issuer in connection with this
Arran Funding Note Trust Deed and no Noteholder shall be
entitled to take any action to obtain from the Note Trustee
any such information;
14.2.11 NOTEHOLDERS AS A CLASS: without prejudice to the provisions of
sub-clause 14.2.12 (Consideration of the interests of the
Noteholder and the other Secured Creditors) whenever in the
Security Documents the Note Trustee is required in connection
with any exercise of its powers, trusts, authorities or
discretions to have regard to the interests of the
Noteholders, it shall have regard to the interests of the
Noteholders as a class. The Note Trustee shall not be
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obliged to have regard to the consequences (including the tax
consequences) of such exercise for any individual Noteholder
resulting from his or its being for any purpose domiciled or
resident in, or otherwise connected in any way with, or
subject to the jurisdiction of, any particular territory or
taxing jurisdiction;
14.2.12 CONSIDERATION OF THE INTERESTS OF THE NOTEHOLDERS AND THE
OTHER SECURED CREDITORS: the Note Trustee shall, as regards
all the powers, trusts, authorities, duties and discretions
vested in it by the Security Documents, the other Documents or
the Notes, except where expressly provided otherwise, have
regard to the interests of both the Noteholders and the other
Secured Creditors, but if, in the Note Trustee's sole opinion,
there is a conflict between their interests, it will have
regard solely to the interests of the Noteholders and no other
Secured Creditor shall have any claim against the Note Trustee
for so doing. Where, in the opinion of the Note Trustee there
is a conflict between the interests of holders of any of the
classes of Notes of a particular series the Note Trustee shall
in the exercise of its duties, powers and discretions, have
regard solely to the interests of the Most Senior Class;
14.2.13 DETERMINATION OF MATERIAL PREJUDICE: Notwithstanding that none
of the Note Trustee and the Noteholders may have the right of
recourse against the Rating Agencies in respect of
confirmation given by such Rating Agencies and relied upon by
the Note Trustee pursuant to this sub-clause, the Note Trustee
shall be entitled to assume, for the purposes of exercising
any power, trust, authority, duty or discretion under or in
relation to the Notes, the Security Documents or any of the
other Documents, that such exercise will not be materially
prejudicial to the interests of the Noteholders if the Rating
Agencies have confirmed in writing that the then current
rating of the Notes would not be adversely affected by such
exercise. It is agreed and acknowledged that, notwithstanding
the foregoing, a credit rating is an assessment of credit and
does not address other matters that may be of relevance to
Noteholders. In being entitled to rely on the fact that the
Rating Agencies have confirmed the then current rating of the
relevant Notes would not be adversely affected, it is
expressly agreed and acknowledged by the Note Trustee and
specifically notified to Noteholders (and to which they are
bound by the Conditions) that the above does not impose or
extend any actual or contingent liability for the Rating
Agencies to the Note Trustee, the Noteholders or any other
Person or create any legal relations between the Rating
Agencies and the Note Trustee, the Noteholders or any other
Person whether by way of contract or otherwise;
14.2.14 NO OBLIGATION TO MONITOR PERFORMANCE: the Note Trustee shall
be under no obligation to monitor or supervise the performance
by the Issuer or any of the other Transaction Parties of their
respective obligations under the Documents or under the Notes
or any other agreement or document relating to the
transactions herein or therein contemplated and shall be
entitled, in the absence of actual knowledge of a breach of
obligation, to assume that each such person is properly
performing and complying with its obligations and that no Pay
Out Event or Series Pay Out Event has occurred, unless it
receives express notice to the contrary;
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14.2.15 MAINTENANCE OF RATING: the Note Trustee shall not be
responsible for the maintenance of the Ratings, for the
consequence on any Rating of any exercise of its duties,
powers and discretions or for the obtaining or maintaining of
any listing in respect of the Notes. Notwithstanding that none
of the Note Trustee and the Noteholders may have the right of
recourse against the Rating Agencies in respect of
confirmation given by such Rating Agencies and relied upon by
the Note Trustee pursuant to this sub-clause, the Note Trustee
shall be entitled but not bound to assume, for the purposes of
exercising any powers, authority or discretion under or in
relation to the Notes and this Arran Funding Note Trust Deed
or any Document that such exercise will not be materially
prejudicial to the interests of the Noteholders if each of the
Rating Agencies which is then rating the relevant class of
Notes has confirmed that the current rating of the relevant
class of Notes would not be adversely affected by such
exercise. It is agreed and acknowledged that, notwithstanding
the foregoing, a credit rating is an assessment of credit and
does not address other matters that be of relevance to
Noteholders. In being entitled to rely on the fact that the
Rating Agencies have confirmed that the then current rating of
the relevant Notes would not be adversely affected, it is
expressly agreed and acknowledged by the Arran Funding Note
Trustee and specifically notified to Noteholders (and to which
they are bound by the Conditions) that the above does not
impose or extend any actual or contingent liability for the
Rating Agencies to the Note Trustee, the Noteholders or any
other Person or create any legal relations between the Rating
Agencies and the Note Trustee, the Noteholders or any other
Person whether by way of contract or otherwise;
14.2.16 RESPONSIBILITY FOR DETERMINATION OF CERTAIN MATTERS: the Note
Trustee acknowledges that the Agent Bank is responsible,
pursuant to the Conditions for determining the amount of
principal and interest payable in respect of each Series of
Notes and the Note Trustee shall have no responsibility to
recalculate any such amounts. If the Agent Bank does not at
any time for any reason determine such amounts, the Note
Trustee may so determine the same and such calculation shall
be deemed to have been made by the Agent Bank pursuant to the
Conditions and the Note Trustee shall have no liability in
respect thereof other than as a result of the wilful default,
negligence or fraud of the Note Trustee;
14.2.17 CLEARING SYSTEMS CONFIRMATION: The Note Trustee may call for
and shall be at liberty to accept and place full reliance on
as sufficient evidence thereof and shall not be liable to the
Issuer or any Noteholder by reason only of either having
accepted as valid and that having rejected any certificate or
other document issued by any clearing system as the nominal of
the Notes beneficially owned by any person or any other matter
(and any such certificate or other documents so accepted by
the Note Trustee shall, in the absence of manifest error, be
binding for all purposes);
14.2.18 APPOINTMENT: Under no circumstances shall the Note Trustee be
responsible for the appointment of a successor Servicer; and
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14.2.19 INVALID DISTRIBUTIONS: any appropriation or distribution which
later transpires to have been, or is agreed in good faith by
the Note Trustee to have been, invalid, or which has to be
refunded, shall be refunded and shall be deemed never to have
been made.
14.3 FINANCIAL MATTERS
14.3.1 PROFESSIONAL CHARGES: any Note Trustee being a banker, lawyer,
broker or other person engaged in any profession or business
shall be entitled to charge and be paid all usual professional
and other charges for business transacted and acts done by him
or his partner or firm on matters arising in connection with
the trusts of the Security Documents and also his properly
incurred charges in addition to disbursements for all other
work and business done and all time spent by him or his
partner or firm on matters arising in connection with the
Security Documents, including matters which might or should
have been attended to in person by a trustee not being a
banker, lawyer, broker or other professional person;
14.3.2 EXPENDITURE BY THE NOTE TRUSTEE: nothing contained in the
Security Documents or the other Documents shall require the
Note Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of its duties
or the exercise of any right, power, authority or discretion
hereunder if it has grounds for believing the repayment of
such funds or adequate indemnity against, or security for,
such risk or liability is not reasonably assured to it;
14.3.3 NOTE TRUSTEE MAY ENTER INTO FINANCIAL TRANSACTIONS WITH THE
ISSUER: no Note Trustee and no director or officer of any
corporation being a Note Trustee hereof shall by reason of the
fiduciary position of such Note Trustee be in any way
precluded from making any contracts or entering into any
transactions in the ordinary course of business with the
Issuer, or any person or body corporate directly or indirectly
associated with the Issuer, or from accepting the trusteeship
of any other debenture stock, debentures or securities of the
Issuer or any person or body corporate directly or indirectly
associated with the Issuer, and neither the Note Trustee nor
any such director or officer shall be accountable to the
Noteholders, the Issuer or any person or body corporate
directly or indirectly associated with the Issuer, for any
profit, fees, commissions, interest, discounts or share of
brokerage earned, arising or resulting from any such contracts
or transactions and the Note Trustee and any such director or
officer shall also be at liberty to retain the same for its or
his own benefit;
14.3.4 NOTE TRUSTEE NOT ACCOUNTABLE FOR PROFITS: neither the Note
Trustee nor any company associated with it nor any director or
officer of any corporation being a Note Trustee shall be
accountable to the Noteholders, the other Secured Creditors,
the Issuer or any other Transaction Party or any person or
body corporate directly or indirectly associated with the
Issuer or any such other Transaction Party for any profit,
fees, commissions, interest, discounts or share
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of brokerage earned, arising or resulting from (i) any
contracts or transactions referred to in Paragraph 6 (Services
Non-Exclusive) of the Common Terms and the Note Trustee and
any such director or officer shall also be at liberty to
retain the same for its or his own benefit; and (ii) the
deposit of monies with any company associated with it which is
a bank save that the Note Trustee shall account for the
standard amount of interest paid by it to a standard customer
in respect of a deposit of the type made; and
14.3.5 NOTEHOLDER APPRAISAL OF FINANCIAL CONDITION: each Noteholder
and each other Secured Creditor shall be solely responsible
for making its own independent appraisal of and investigation
into the financial condition, creditworthiness, affairs,
status and nature of the Issuer and the Note Trustee shall not
at any time have any responsibility for any such appraisal or
investigation and no Noteholder or other Secured Creditors
shall rely on the Note Trustee in respect thereof.
14.4 MATTERS RELATING TO SECURITY
14.4.1 RELIANCE ON TITLE TO THE SECURITY: the Note Trustee may accept
without investigation, requisition or objection such right and
title as the Issuer may have to any of the Secured Property
and the other Security created in favour of the Note Trustee
by the Security Documents and shall not be bound or concerned
to examine or enquire into or be liable for any defect or
failure in the right or title of the Issuer to all or any of
the Secured Property whether such defect or failure was known
to the Note Trustee or might have been discovered upon
examination or enquiry and whether capable of remedy or not;
14.4.2 REGISTRATION AND PERFECTION OF THE SECURITY: the Note Trustee
shall not be liable for any failure, omission or defect in
perfecting, protecting or further assuring the Security
including:
(a) any failure, omission or defect in registering or
filing or procuring registration or filing of, or
otherwise protecting or perfecting the Security or the
priority thereof or the right or title of any person in
or to the assets comprised in the Security; and
(b) any failure or omission to require any further
assurances in relation to the Security;
14.4.3 ADEQUACY OF THE SECURITY: the Note Trustee shall not be
responsible for any unsuitability, inadequacy or unfitness of
any Secured Property as security for the Secured Obligations
and shall not be obliged to make any investigation into, and
shall be entitled to assume, the suitability, adequacy and
fitness of the Secured Property as security for the Secured
Obligations;
14.4.4 MONITORING: the Note Trustee shall not be responsible for
investigating, monitoring or supervising the observance or
performance by any person in respect of the Secured Property
or otherwise;
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14.4.5 NO RESPONSIBILITY FOR SECURITY: the Note Trustee shall not be
responsible for any Liabilities occasioned to the Security
however caused, whether by an act or omission of the Issuer or
any other party to the Documents or any other person
(including any bank, broker, depositary or other intermediary
or any clearing system or operator thereof) acting in
accordance with or contrary to the provisions of any of the
Documents or otherwise and irrespective of whether the
Security is held by or to the order of any of such persons,
unless such loss is caused by a Breach of Duty of the Note
Trustee;
14.4.6 INSURANCE: without prejudice to the provisions of any Document
relating to insurance, the Note Trustee shall not be under any
obligation to insure any of the Security or any deeds or
documents of title or other evidence in respect of the
Security or to require any other person to maintain any such
insurance or monitor the adequacy of any such insurance and
shall not be responsible for any Liability which may be
suffered by any person as a result of the lack of or
inadequacy of any such insurance;
14.4.7 DEPRECIATION IN VALUE: until the delivery of an Enforcement
Notice, the monies standing to the credit of any account
comprised in the Secured Property shall be dealt with in
accordance with the provisions of the Documents and the Note
Trustee shall not be responsible in such circumstances or at
any other time for any Liability suffered by any person,
whether by reason of depreciation in value or by fluctuation
in exchange rates or otherwise, unless such Liability is by
reason of a Breach of Duty of the Note Trustee;
14.4.8 NO LIABILITY FOR LOSS: the Note Trustee will not be liable for
any decline in the value nor any loss realised upon any sale
or other disposition pursuant to the Security Documents of,
any of the Secured Property. In particular and without
limitation, the Note Trustee shall not be liable for any such
decline or loss directly or indirectly arising from its acting
or failing to act as a consequence of an opinion reached by it
in good faith based on advice received by it in accordance
with the Security Documents and the Conditions;
14.4.9 LIABILITY TO TAX: the Note Trustee shall have no
responsibility whatsoever to the Issuer, any Noteholder or
other Secured Creditors as regards any deficiency which might
arise because the Note Trustee is subject to any Tax in
respect of all or any of the Secured Property, the income
therefrom or the proceeds thereof;
14.4.10 RESPONSIBILITY: the Note Trustee shall not be responsible for
the execution, legality, effectiveness, adequacy, genuineness,
validity, enforceability or suitability of any Note or other
documents entered into in connection therewith, nor shall it
be responsible or liable to any person because of any
invalidity of any provisions of such documents or the
unenforceability thereof, whether arising from statute, law or
decision of any court. The Note Trustee shall not have any
responsibility for, or have any duty to make any investigation
in respect of or in any way be liable whatsoever for:
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(a) the nature, status, creditworthiness or solvency of a
Transferor, the Issuer or any Obligor or any other
person or entity who has at any time provided any
security or support whether by way of guarantee, charge
or otherwise in respect of any advance made to a
Transferor, the Issuer or any Obligor;
(b) the execution, legality, validity, adequacy,
admissibility in evidence or enforceability of the
Notes or any other document entered into in connection
therewith;
(c) the title, ownership, value, sufficiency or existence
of any Receivables;
(d) the scope or accuracy of any representations,
warranties or statements made by or on behalf of any
Obligor in any application for any advance or any
document entered into in connection therewith;
(e) the performance or observance by any party of any
provisions of the Note or in any document entered into
in connection therewith or the fulfilment or
satisfaction of any conditions contained therein or
relating thereto or as to the existence or occurrence
at any time of any default, event of default or similar
event contained therein or waiver or consent which has
at any time been granted in relation to any of the
foregoing;
(f) the registration, filing, protection or perfection of
any assignment or security interest or the priority of
the security thereby created;
(g) the existence, accuracy or sufficiency of any legal or
other opinions, searches, reports, certificates,
valuations or investigations delivered or obtained or
required to be delivered or obtained at any time in
connection herewith;
(h) the suitability, adequacy or sufficiency of any Credit
Card Guidelines operated by a Transferor and any
arrears and enforcement procedures operated by a
Transferor;
(i) the failure by a Transferor, Loan Note Issuer or the
Servicer to obtain or comply with any licence, consent
or other authority in connection with the origination,
sale, purchase or administration of any of the
Receivables or the failure to effect or procure
registration of or to give notice to any person in
relation to the Receivables Securitisation Deed or
other Documents or otherwise protect interests in,
and/or the security created or purported to be created
by or pursuant to any of the Receivables or other
documents entered into connection therewith;
(j) the failure to call for delivery of documents of title
to or require any transfers, legal mortgages, charges
or other further assurances in relation to any of the
assets the subject matter of any of the Documents or
any other document;
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(k) any accounts, books, records or files maintained by
Loan Note Issuer, the Receivables Trustee, a Transferor
or any other person in respect of any of the
Receivables;
(l) any other matter or thing relating to or in any way
connected with any Receivables or any document entered
into in connection therewith, whether or not similar to
the foregoing;
(m) obtaining insurance for any of the security constituted
by the Arran Funding Note Trust Deed or any deeds or
documents of title or other evidence in respect thereof
and shall not be responsible for any loss, expense or
liability which may be suffered as a result of the lack
of or inadequacy of any such insurance; or
(n) any deficiency in amounts payable to Noteholders by
virtue of the Note Trustee being liable to tax or
obliged to deduct tax in respect of sums received, held
or paid out by it under the Documents;
14.4.11 NO DUTY TO CREDITORS EXCEPT PAYMENT: in acting as Note Trustee
under the Documents, the Note Trustee shall not assume any
duty or responsibility toward any Secured Creditors (other
than the Noteholders) other than to pay to any such party any
monies received and payable to it in accordance with the order
of priority of payments prior to and post enforcement and
shall have regard solely to the interests of the Noteholders;
14.4.12 NO RESPONSIBILITY TO MONITOR NOTES: The Note Trustee shall not
be responsible for monitoring whether an Event of Default has
occurred and shall have no obligation to give an Enforcement
Notice or to procure the giving of such, or to instruct any
party to give such a notice or to act in any way, unless it
has been instructed and indemnified in accordance with Clause
15 (Costs and Expenses);
14.4.13 SWAP COUNTERPARTY: In acting as Note Trustee under the Arran
Funding Note Trust Deed, the Note Trustee shall not assume any
duty or responsibility to any Swap Counterparty, custodian or
Paying Agent (other than to pay to any such party any monies
received and payable to it and to act in accordance with the
provisions of Condition 5) and shall have regard solely to the
interests of the Noteholders of any Series, or as the case may
be, all Series. In addition, the Note Trustee need not make
any investigation into the creditworthiness of any Swap
Counterparty or into the validity of any such party's
obligations in respect of any of the Secured Property
(including, without limitation, whether the cashflows in
respect of the Secured Property relating to any Notes are
matched);
14.4.14 CERTIFICATION: The Note Trustee may call for and accept as
sufficient evidence of the existence and amount of any
termination payment or other amounts due in accordance with
the terms of the Swap Agreement a certificate to that effect
signed by an authorised signatory or a director of the
relevant Swap Counterparty and the Note Trustee shall not be
bound to call for further evidence and shall not be
responsible for any loss that may be occasioned by acting on
any such certificate; and
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14.4.15 ENTRY INTO POSSESSION: without prejudice to the generality of
this Clause 14, entry into possession of the Secured Property
or any part thereof shall not render the Note Trustee or the
Receiver liable to account as mortgagee in possession or
liable for any loss on realisation or for any default or
omission for which a mortgagee in possession might be liable;
14.4.16 GOING OUT OF POSSESSION: without prejudice and subject to the
terms and conditions of this Arran Funding Note Trust Deed, if
and whenever the Note Trustee or the Receiver enters into
possession of the Secured Property, it shall be entitled at
any time at its discretion to go out of such possession; and
14.4.17 NO OBLIGATION FOR PAYMENTS: the Note Trustee shall not have
any duty to ensure that any payment or other financial benefit
in respect of any of the Secured Property is duly and
punctually paid, received or collected as and when the same
becomes due and payable or to secure that the correct amounts
(if any) are paid or received.
14.5 DISAPPLICATION
Without prejudice to Clause 14.6 below, Section 1 of the Trustee Act
2000 shall not apply to the duties of the Note Trustee in relation to
the trusts constituted by this Arran Funding Note Trust Deed. Where
there are any inconsistencies between the Trustee Acts and the
provisions of this Arran Funding Note Trust Deed, the provisions of this
Arran Funding Note Trust Deed shall, to the extent allowed by law,
prevail and, in the case of any such inconsistency with the Trustee ▇▇▇
▇▇▇▇, the provisions of this Arran Funding Note Trust Deed shall
constitute a restriction or exclusion for the purposes of that Act.
14.6 NOTE TRUSTEE LIABILITY
None of the provisions of the Security Documents shall in any case in
which the Note Trustee has failed to show the degree of care and
diligence required by it as Note Trustee, having regard to the
provisions of the Security Documents conferring on the Note Trustee any
powers, authorities or discretions (i) relieve or exempt the Note
Trustee from or indemnify it against any liability for breach of trust,
wilful default or negligence or (ii) relieve the Note Trustee from
liability for its own negligent action, its own negligent failure to
act, on its own wilful misconduct, except as permitted in Section 315(d)
of the TIA.
15. COSTS AND EXPENSES
15.1 REMUNERATION:
15.1.1 NORMAL REMUNERATION: The Issuer shall pay to the Note Trustee
remuneration on a Series-by-Series basis for its services as
Note Trustee as from the initial Issue Date, such remuneration
to be at such rate as may from time to time be agreed between
the Issuer and the Note Trustee. Such remuneration shall
accrue from day to day and be payable in accordance with the
order of priority of payments prior to and post enforcement
until the trusts of the Security Documents are discharged.
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15.1.2 EXTRA REMUNERATION: In the event of the occurrence of an Event
of Default or a Potential Event of Default or the Note Trustee
considering it expedient or necessary or being requested by
the Issuer to undertake duties which the Note Trustee and the
Issuer agree to be of an exceptional nature or otherwise
outside the scope of the normal duties of the Note Trustee
under this Arran Funding Note Trust Deed, the Issuer shall pay
to the Note Trustee such additional remuneration as shall be
agreed between them.
15.1.3 REDUCTION IN REMUNERATION: The rate of remuneration in force
from time to time may, upon the final redemption of the whole
of the Notes in a class, be reduced by an amount as may from
time to time be agreed by the Note Trustee. Such reduction in
remuneration shall be calculated from the date following such
final redemption.
15.1.4 FAILURE TO AGREE: In the event of the Note Trustee and the
Issuer failing to agree:
(a) (in a case to which sub-clause 15.1.1 applies) upon the
amount of the remuneration; or
(b) (in a case to which sub-clause 15.1.2 applies) upon
whether such duties shall be of an exceptional nature or
otherwise outside the scope of the normal duties of the
Note Trustee under the Security Documents, or upon such
additional remuneration;
such matters shall be determined by an investment bank (acting
as an expert and not as an arbitrator) selected by the Note
Trustee and approved by the Issuer or, failing such approval,
nominated (on the application of the Note Trustee) by the
President for the time being of The Law Society of England and
Wales (the expenses involved in such nomination and the fees
of such investment bank being payable by the Issuer) and the
determination of any such investment bank shall be final and
binding upon the Note Trustee and the Issuer.
15.1.5 EXPENSES: The Issuer shall also pay or discharge all properly
incurred and duly documented costs, charges and expenses
incurred by the Note Trustee in relation to the preparation
and execution of, the exercise of its powers and the
performance of its duties under, and in any other manner in
relation to, the Security Documents and the other Documents,
including but not limited to legal and travelling expenses and
any stamp, issue, registration, documentary and other similar
taxes (excluding, without limitation and for the avoidance of
doubt, VAT) or duties paid or payable by the Note Trustee in
connection with any action taken or contemplated by or on
behalf of the Note Trustee for enforcing, or resolving any
doubt concerning, or for any other purpose in relation to, the
Security Documents and the other Documents.
15.1.6 REIMBURSEMENT: As full reimbursement for any costs and
expenses incurred by it in connection with its activities in
respect of (i) a particular Series, the Issuer prior to the
service of an Enforcement Notice, and the Note Trustee
thereafter, shall be entitled to utilise Secured Property in
respect of each Series allocated to
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the Secured Creditors for the relevant Series to meet such
costs and expenses attributable solely to a particular Series
with respect to each Interest Period, solely to the extent of
Secured Property allocable with respect thereto as provided in
this Arran Funding Note Trust Deed, any Arran Funding Note
Trust Deed Supplement and the relevant Conditions, on the
related Distribution Date for such Series (which shall include
all sums due to the Note Trustee under Clause 12 (Application
of Monies)) and, (ii) some or all Series, the Issuer prior to
the service of an Enforcement Notice, and the Note Trustee
thereafter, shall be entitled to use Secured Property in
respect of those Series allocated to the Secured Creditors for
each Series to meet such costs and expenses attributable to
those Series with respect to each Interest Period, solely to
the extent of Secured Property allocable with respect thereto
as provided in this Arran Funding Note Trust Deed, any Arran
Funding Note Trust Deed Supplement and the relevant
Conditions, on the related Distribution Date for each Series.
The amount of any reimbursement for its activities as the
Issuer will be determined in accordance with the relevant
Arran Funding Note Trust Deed Supplement for each Series. For
the avoidance of any doubt, the amounts due to the Note
Trustee under Clause 12 (Application of Monies) shall be
considered expenses of the Issuer and will be allocated to the
particular Series the Note Trustee is owed an amount in
respect of (if this is capable of calculation).
15.1.7 INDEMNITY: The Issuer covenants with and undertakes to the
Note Trustee to indemnify the Note Trustee on demand against
any Liabilities which are incurred by the Note Trustee, any
Receiver or any Appointee or any other person appointed by the
Note Trustee under the Security Documents to whom any trust,
power, authority or discretion may be delegated by the Note
Trustee in the execution, or the purported execution, of the
trusts, powers, authorities and discretions vested in it by
the Security Documents, in, or in connection with, (except
insofar as the same are incurred because of a Breach of Duty
of the Note Trustee, Receiver or Appointee):
(a) the performance of the terms of the Security Documents;
(b) anything done or purported to be done by the Note
Trustee, any Appointee or the Receiver in relation to
the Secured Property or under the Security Documents or
any other Document;
(c) the exercise or attempted exercise by or on behalf of
the Note Trustee, any Appointee or the Receiver of any
of the powers of the Note Trustee, any Appointee or the
Receiver or any other action taken by or on behalf of
the Note Trustee with a view to or in connection with
enforcing any obligations of the Issuer or any other
person under any Document or the recovery by the Note
Trustee, any Appointee or the Receiver from the Issuer
of the Secured Obligations;
(d) any payment made in respect of the Secured Obligations
(whether by the Issuer or any other person) which is
subsequently impeached or declared void for any reason
whatsoever; or
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(e) the Note Trustee being held to be, or treated as, or
being deemed to be a creditor for the purposes of the
Consumer Credit ▇▇▇ ▇▇▇▇ in respect of a Regulated
Agreement (as defined in the Consumer Credit Act 1974).
15.1.8 PRIORITY OF INDEMNITY: The Note Trustee and the Receiver shall
(except for any liability for Breach of Duty of the Note
Trustee for which no indemnity is available under this Arran
Funding Note Trust Deed) only be entitled to be indemnified
out of the Secured Property against all actions, liabilities
payable pursuant to sub-clause 15.1.7 (Indemnity), proceedings
(or threats of actions or proceedings) costs, claims and
demands in respect of any matter or thing in any way omitted
or done in any way in relation to the Security Documents in
accordance with the order of priority of payments prior to and
post enforcement as referred to in Clause 12.1 (Application of
Monies) and in the relevant Arran Funding Note Trust Deed
Supplement and the Note Trustee may retain and pay out of the
monies in its hands arising from the Secured Property all sums
necessary to effect such indemnity.
15.1.9 PAYMENT OF AMOUNTS DUE: All amounts due and payable pursuant
to sub clauses 15.1.5 (Expenses) and 15.1.7 (Indemnity) shall
be payable by the Issuer on the date specified in a demand by
the Note Trustee; the rate of interest applicable to such
payments shall be one per cent. per annum above the base rate
from time to time of RBS and interest shall accrue:
(a) in the case of payments made by the Note Trustee prior
to the date of the demand, from the date on which the
payment was made or such later date as specified in
such demand;
(b) in the case of payments made by the Note Trustee on or
after the date of the demand, from the date specified
in such demand, which date shall not be a date earlier
than the date such payments are made.
All remuneration payable to the Note Trustee shall carry
interest at the rate specified in this sub-clause 15.1.9
(Payment of amounts due) from the due date thereof.
15.1.10 APPORTIONMENT OF EXPENSES: The Note Trustee shall apportion
the costs, charges, expenses and liabilities incurred by the
Note Trustee in the preparation and execution of the trusts of
this Arran Funding Note Trust Deed (including remuneration of
the Note Trustee) between the several Series of Notes in such
manner and in such amounts as it shall, in its absolute
discretion, consider appropriate.
15.1.11 DISCHARGES: Unless otherwise specifically stated in any
discharge of this Arran Funding Note Trust Deed the provisions
of this Clause 15.1 (Remuneration) shall continue in full
force and effect notwithstanding such discharge.
15.1.12 PAYMENTS: All payments to be made by the Issuer to the Note
Trustee under this Arran Funding Note Trust Deed shall be made
free and clear of, and without withholding or deduction for,
any taxes, duties, assessments or
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governmental charges of whatever nature imposed, levied,
collected, withheld or assessed by or within any relevant
jurisdiction or any authority therein or thereof having power
to tax, unless such withholding or deduction is required by
law. In that event, the Issuer shall pay such additional
amounts as are necessary to ensure that the Note Trustee
receives such amounts as would have been received by it had no
such withholding or deduction been required.
15.1.13 VAT: All sums payable by the Issuer to the Note Trustee under
this Arran Funding Note Trust Deed shall be deemed to be
exclusive of any VAT chargeable on any supply by the Note
Trustee for which that sum is the consideration (in whole or
in part) for VAT purposes. Where, under the terms of this
Arran Funding Note Trust Deed, the Note Trustee makes a supply
to the Issuer for VAT purposes and VAT is or becomes
chargeable on such supply for which the Note Trustee is
required to account to HM Revenue and Customs, the Issuer
shall pay an amount to the Note Trustee equal to that VAT (in
addition to and at the same time as paying or providing any
other consideration for such supply).
15.2 EXCHANGE RATE INDEMNITY
15.2.1 CURRENCY OF ACCOUNT AND PAYMENT: Unless otherwise specified in
any relevant Arran Funding Note Trust Deed Supplement, the
Contractual Currency will be the sole currency of account and
payment for all sums payable by the Issuer under or in
connection with the Security Documents, the other Documents,
or the relevant Notes including damages;
15.2.2 EXTENT OF DISCHARGE: An amount received or recovered in a
currency other than the Contractual Currency (whether as a
result of, or of the enforcement of, a judgment or order of a
court of any jurisdiction, in the winding up or dissolution of
the Issuer or otherwise) by the Note Trustee or any Noteholder
in respect of any sum expressed to be due to it from the
Issuer will only discharge the Issuer to the extent of the
Contractual Currency amount which the recipient is able to
purchase with the amount so received or recovered in that
other currency on the date of that receipt or recovery (or, if
it is not practicable to make that purchase on that date, on
the first date on which it is practicable to do so); and
15.2.3 INDEMNITY: If that Contractual Currency amount is less than
the Contractual Currency amount expressed to be due to the
recipient under this Arran Funding Note Trust Deed or the
relevant Series of Notes, the Issuer will indemnify it against
any Liability sustained by it as a result. In any event, the
Issuer will indemnify the recipient against the cost of making
any such purchase.
15.3 The above indemnities shall constitute obligations of the Issuer
separate and independent from its obligations under the Notes and shall
apply irrespective of any indulgence granted by the Note Trustee or the
Noteholders from time to time and, subject to Paragraph 8 (Limited
Recourse and Non-Petition) of the Common Terms, shall continue in full
force and effect notwithstanding the termination of this Arran Funding
Note Trust Deed, the judgment or filing of any proof or proofs in any
bankruptcy, insolvency or liquidation of the Issuer for a liquidated sum
or sums in respect of amounts due under
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this Arran Funding Note Trust Deed (other than this Clause) or the
Notes. Any such discrepancy as aforesaid shall be deemed to constitute a
loss suffered by the Note Trustee and the Noteholders and no proof or
evidence of any actual loss shall be required by the Issuer or its
liquidator.
16. APPOINTMENT AND RETIREMENT
16.1 APPOINTMENT OF NOTE TRUSTEES
The power of appointing new trustees of the Security Documents shall be
vested in the Issuer but no person shall be appointed who shall not
previously have been approved by an Extraordinary Resolution of the
Noteholders. A trust corporation may be appointed sole trustee hereof
but subject thereto there shall be at least two trustees hereof one at
least of which shall be a trust corporation. Any appointment of a new
trustee hereof shall as soon as practicable thereafter be notified by
the Issuer to the Agents and the Noteholders. The Noteholders shall
together have the power, exercisable by Extraordinary Resolution, to
remove any trustee or trustees for the time being hereof. The removal of
any trustee shall not become effective unless there remains a Note
Trustee hereof (being a trust corporation) in office after such removal.
16.2 CO-NOTE TRUSTEES
Notwithstanding the provisions of Clause 16.1 (Appointment of Note
Trustees), the Note Trustee may, upon giving prior notice to the Issuer
but without the consent of the Issuer or the Noteholders or anyone else,
appoint any person established or resident in any jurisdiction (whether
a trust corporation or not) to act either as a separate trustee or as a
co-trustee jointly with the Note Trustee:
16.2.1 if the Note Trustee considers such appointment to be in the
interests of the Secured Creditors; or
16.2.2 for the purposes of conforming to any legal requirements,
restrictions or conditions in any jurisdiction in which any
particular act or acts are to be performed; or
16.2.3 for the purposes of obtaining a judgment in any jurisdiction
or the enforcement in any jurisdiction either of a judgment
already obtained or of the Security Documents or any other
Document.
16.3 RETIREMENT OF NOTE TRUSTEES
Any Note Trustee for the time being of the Security Documents may retire
at any time upon giving not less than three calendar months' notice in
writing to the Issuer without assigning any reason therefor and without
being responsible for any costs occasioned by such retirement. The
retirement of any Note Trustee shall not become effective unless there
remains a trustee hereof (being a trust corporation) in office after such
retirement. The Issuer hereby covenants that in the event of the only
trustee hereof which is a trust corporation giving notice under this
Clause it shall use its best endeavours to procure a new trustee, being a
trust corporation, to be appointed and if the Issuer shall fail to
appoint a successor within [60] days of the Note Trustee giving notice of
resignation
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then, the Note Trustee shall be entitled to procure forthwith a new
trustee which meets the requirement of this Arran Funding Note Trust
Deed.
16.4 COMPETENCE OF A MAJORITY OF NOTE TRUSTEES
Whenever there shall be more than two trustees hereof the majority of
such trustees shall (provided such majority includes a trust
corporation) be competent to execute and exercise all the trusts,
powers, authorities and discretions vested by the Security Documents in
the Note Trustee generally.
16.5 POWERS ADDITIONAL
The powers conferred by the Security Documents upon the Note Trustee
shall be in addition to any powers which may from time to time be vested
in it by general law or as the holder of any of the Notes.
16.6 MERGER AND INTEGRATION
16.6.1 Except as specifically stated otherwise herein, this Arran
Funding Note Trust Deed sets forth the entire understanding of
the parties relating to the subject matter hereof, and all
prior understandings, written or oral, are superseded by this
Arran Funding Note Trust Deed. This Arran Funding Note Trust
Deed may not be modified, amended, waived or supplemented
except as provided herein.
16.6.2 Any corporation into which the Note Trustee may be merged or
converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or
consolidation to which the Note Trustee shall be a party, or
any corporation succeeding to all or substantially all the
corporate trust business of the Note Trustee, shall be the
successor of the Note Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under
this Clause, without the execution or filing of any paper or
any further act on the part of any of the parties hereto.
17. CERTIFICATES AND OPINIONS
17.1 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT
Upon any request or application by the Issuer to the Note Trustee to
take any action in relation to Clause 18 (Release of Security), the
Issuer shall furnish to the Note Trustee:
17.1.1 an Officer's Certificate (which shall include the statements
set forth in Clause 17.2 below) stating that, in the opinion
of the signers, all conditions precedent, if any, provided for
in this Arran Funding Note Trust Deed relating to the proposed
action have been complied with; and
17.1.2 an Opinion of Counsel (which shall include the statements set
forth in Clause 17.2 below) stating that, in the opinion of
such counsel, all such conditions precedent, if any, provided
for in this Arran Funding Note Trust Deed relating to the
proposed action have been complied with.
17.2 STATEMENTS REQUIRED IN CERTIFICATE AND OPINION
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Each certificate and opinion with respect to compliance with a condition
or covenant provided for in this Arran Funding Note Trust Deed shall
include:
17.2.1 a statement that the Person making such certificate or opinion
has read such covenant or condition and the definitions
relating thereto;
17.2.2 a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
17.2.3 a statement that, in the opinion of such Person, it or he has
made such examination or investigation as is necessary to
enable such Person to express an informed opinion as to
whether or not such covenant or condition has been complied
with; and
17.2.4 a statement as to whether or not, in the opinion of such
Person, such covenant or condition has been complied with.
18. RELEASE OF SECURITY
Except to the extent expressly provided in this Clause 18 (Release of
Security), the Note Trustee shall execute and do all such deeds, act and
things as may be reasonably necessary to reassign and release property
from the security constituted by this Arran Funding Note Trust Deed as
supplemented by the relevant Arran Funding Note Trust Deed Supplement
either in respect of all secured property or in respect of security
created in respect of a particular Arran Funding Note Trust Deed
Supplement, only upon receipt of a notice from the Issuer accompanied by
an Officer's Certificate (as described above) an Opinion of Counsel and
Independent Certifications in accordance with Sections 314(c) and 314(d)
of the TIA, as applicable, or an Opinion of Counsel in lieu of such
Independent Certifications to the effect that the TIA does not require
any such Independent Certificates, PROVIDED THAT the Issuer shall not be
obliged to issue such notice:
18.1.1 to release all Secured Property from the Security constituted
by this Arran Funding Note Trust Deed and all relevant Arran
Funding Note Trust Deed Supplements, where all outstanding
Series of Notes have been repaid in full and no Noteholder has
any further obligation to make any further subscription
payment in respect of such Notes; or
18.1.2 to release all secured property from the security constituted
in respect of a particular Arran Funding Note Trust Deed
Supplement, where the relevant outstanding Series of Notes
issued pursuant to such Arran Funding Note Trust Deed
Supplement have been repaid in full and no Noteholder under
such Arran Funding Note Trust Deed Supplement has any further
obligation to make any further subscription payment in respect
of such Notes.
Whenever any property is to be released from the Security constituted by
this Arran Funding Note Trust Deed as supplemented by the relevant Arran
Funding Note Trust Deed Supplement, the Issuer shall also furnish to the
Note Trustee an Officer's Certificate certifying that either sub-clause
18.1.1 or 18.1.2 above is true, and that in the
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opinion of such Person the proposed release will not impair the Security
under this Arran Funding Note Trust Deed or relevant Arran Funding Note
Trust Deed Supplement in contravention of the provisions hereof.
Following irrevocable discharge in full of the Secured Obligations of
which the Note Trustee has notice, the Note Trustee shall reassign to
the Issuer the Issuer Jersey Secured Property.
19. THIRD PARTY BENEFICIARIES
19.1 This Arran Funding Note Trust Deed will enure to the benefit of and be
binding upon the parties hereto, and, in respect of any Series, the
Secured Creditors named in the relevant Arran Funding Note Trust Deed
Supplement, and their respective successors and permitted assigns as
Secured Creditors and beneficiaries of the Secured Property in respect
of a relevant Series;
19.2 To the extent specified in any relevant Arran Funding Note Trust Deed
Supplement, any third party that is not a Secured Creditor of the
Secured Property of a Series, may by execution of such Arran Funding
Note Trust Deed Supplement, as a matter of contract only, be entitled to
the benefit of the provisions of this Arran Funding Note Trust Deed as
if such third party were a Secured Creditor hereunder and the rights of
such third parties so provided shall enure to the benefit of such third
parties and be binding upon the parties hereto and the Secured Creditors
of the Secured Property in respect of such Series; and
19.3 Except as otherwise provided in this Clause 19 (Third Party
Beneficiaries), no other Person will have any right or obligation
hereunder.
20. ACTIONS BY NOTEHOLDERS
20.1 Subject to the satisfaction of Clauses 11.1 (Security Enforceable) and
11.2 (Enforcement Notice), and if:
20.1.1 it is so instructed in writing by the holders of at least
one-quarter in aggregate principal amount of the Notes of the
Most Senior Class outstanding of all Series; or
20.1.2 it shall have been so directed by an Extraordinary Resolution
of the holders of the Notes of the Most Senior Class
outstanding of all Series; and
20.1.3 it shall have been indemnified and/or secured to its
satisfaction,
the Note Trustee shall be bound to take the following actions:
20.1.4 following the occurrence of a Loan Event of Default, to direct
the Security Trustee to demand all amounts of principal and/or
interest owing in respect of the Loan Notes to be paid
immediately and to take such steps as it shall think fit to
enforce any security it holds in relation to all Series then
issued;
20.1.5 to direct the Security Trustee to waive any of the matters
pursuant to Loan Note Condition 9 (Loan Note Events of
Default);
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20.1.6 to direct the Security Trustee to terminate the appointment of
the Servicer and/or the Cash Manager and/or to appoint a
replacement Servicer and/or the Cash Manager; and
20.1.7 any other actions specified in the relevant Final Terms;
21. TIA PREVAILS
If any provision of this Arran Funding Note Trust Deed limits, qualifies
or conflicts with another provision which is required to be included in
this Arran Funding Note Trust Deed by, and is not subject to a
contractual waiver under the TIA, the required provision of the TIA
shall prevail.
IN WITNESS WHEREOF this Arran Funding Note Trust Deed is hereby delivered on
the date first before written.
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SCHEDULE 1
PART A
FORM OF GLOBAL NOTE CERTIFICATE
CUSIP: ........... Registered Number:..................
ISIN: .........
[UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH
AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.] 1
[THE PRINCIPAL OF THIS NOTE IS PAYABLE AS IS SET FORTH HEREIN AND IN THE
INDENTURE REFERRED TO BELOW. ACCORDINGLY, THE OUTSTANDING PRINCIPAL
AMOUNT OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE
FACE HEREOF.]
[EACH HOLDER OF THIS NOTE, BY ACCEPTING THIS NOTE, AND EACH BENEFICIAL
OWNER OF AN INTEREST IN THIS NOTE, BY ACCEPTING SUCH BENEFICIAL
INTEREST, (i) AGREES TO TREAT THE NOTES AS INDEBTEDNESS OF THE ISSUER
FOR ALL U.S. FEDERAL, STATE AND LOCAL INCOME AND FRANCHISE TAXES AND FOR
PURPOSES OF ANY OTHER TAX IMPOSED ON OR MEASURED BY INCOME; AND (ii)
UNDERTAKES NOT TO INSTITUTE AT ANY TIME AGAINST THE ISSUER ANY
BANKRUPTCY, WINDING-UP, RE-ORGANIZATION, ARRANGEMENT, ADMINISTRATION,
INSOLVENCY, LIQUIDATION PROCEEDING OR OTHER SIMILAR PROCEEDING.]
ARRAN FUNDING LIMITED
(a [public company] incorporated in Jersey)
Registered office: ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇,
Channel Islands
SERIES [*][CURRENCY][AMOUNT] CLASS [A/B/C] [FLOATING/[%]
FIXED RATE NOTES DUE [*]]
GLOBAL NOTE CERTIFICATE
The Issuer has been incorporated for an unlimited duration on [*]. The Issuer
has a subscribed and fully paid-up share capital of [*], divided into [*]
registered shares with a par value of [*] each.
The Notes are secured as to payment in accordance with Condition 5(b).
At the date of issue of this Note, there are no outstanding amounts relating to
previous bond issues by the Issuer.
INTRODUCTION
-------------------------------------------------------------------------------
1 To be included for US Dollar denominated issuance.
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This Global Note Certificate is issued in respect of the [currency][amount]
Class [A/B/C] Notes due [*] (the "CLASS [A/B/C] NOTES " or the "NOTES") of
Arran Funding Limited (the "ISSUER"). The Class [A/B/C] Notes are constituted
by, are subject to, and have the benefit of, a Arran Funding Note Trust Deed
(as amended or supplemented from time to time, the "ARRAN FUNDING NOTE TRUST
DEED") dated [*] 2005 between the Issuer and The Bank of New York as note
trustee (the "NOTE TRUSTEE", which expression includes all persons for the time
being appointed trustee or trustees under the Arran Funding Note Trust Deed)
and are the subject of an agency agreement (the "AGENCY AGREEMENT") between,
among others, the Issuer, The Bank of New York London as principal paying
agent, agent bank, registrar, transfer agent (respectively the "PRINCIPAL
PAYING AGENT", "AGENT BANK", "REGISTRAR", "TRANSFER AGENT" which term shall
include any successor or substitute principal paying agent, agent bank,
registrar, transfer agent appointed pursuant to the terms of the Agency
Agreement), The Bank of New York as paying agent (the "PAYING AGENT", and
together with the Principal Paying Agent, the "PAYING AGENTS", which term shall
include any successor, substitute or additional paying agent appointed pursuant
to the terms of the Agency Agreement) and the Note Trustee.
INTERPRETATION AND DEFINITIONS
Any reference herein to the "CONDITIONS" is to the terms and conditions of the
Class [A/B/C] Notes attached hereto and any reference to a numbered
"Condition" is to the correspondingly numbered provision thereof. Expressions
defined in the Conditions and in the Arran Funding Note Trust Deed shall bear
the same meanings in this Global Note Certificate.
REGISTERED HOLDER
This is to certify that:
[Nominee]
is the person registered in the register maintained by the Registrar in
relation to the Class [A/B/C] Notes (the "REGISTER") as the duly registered
holder (the "HOLDER") of the Class [A/B/C] Notes represented from time to time
by this Global Note Certificate.
PROMISE TO PAY
For value received, the Issuer promises to pay to the Holder, and the Holder is
entitled to receive, on the Payment Date falling in [*] (or on such earlier
date or dates as the principal sum or any part thereof of the Class [A/B/C]
Notes represented hereby becomes repayable in accordance with the Conditions)
such principal sum as is noted at the time of payment on the Register as the
aggregate principal amount of the Class [A/B/C] Notes represented by this
Global Note Certificate, and to pay in arrear on the dates specified in the
Conditions interest on such principal sum at the rate or in accordance with the
other provisions specified in the Conditions, together with such other sums and
additional amounts (if any) payable in accordance with the Conditions, all
subject to and in accordance with the Conditions. Only the Holder of the Class
[A/B/C] Notes represented by this Global Note Certificate is entitled to
payments in respect of the Class [A/B/C] Notes represented hereby.
TRANSFERS OF THIS GLOBAL NOTE CERTIFICATE
- 54 -
This Global Note Certificate is registered in the name of [Nominee], as nominee
for (i) Euroclear Bank S.A./N.V. as operator of the Euroclear System
("EUROCLEAR") and Clearstream Banking, societe anonyme ("CLEARSTREAM,
LUXEMBOURG") or (ii) DTC or its nominee Cede & Co.
Without prejudice to Condition 4(b), transfers of this Global Note Certificate
shall be limited to transfers in whole, but not in part, to nominees of
Euroclear and Clearstream, Luxembourg, or the DTC or to their successors or to
such successors' respective nominees.
EXCHANGE FOR INDIVIDUAL NOTE CERTIFICATES
This Global Note Certificate is exchangeable on or after the [Individual
Exchange Date] in whole (and without prejudice to Condition 4(b), not in part)
for duly authenticated and completed individual Note certificates ("INDIVIDUAL
NOTE CERTIFICATES") in substantially the form (subject to completion) set out
in Schedule I Part B (Individual Note Certificates) to the Arran Funding Note
Trust Deed if any of the following events occurs:
(a) Euroclear or Clearstream, Luxembourg, DTC, or any alternative clearing
system in which this Global Note Certificate is held, is closed for
business for a continuous period of 14 days (other than by reason of
holidays) or announces an intention permanently to cease business; or
(b) any of the circumstances described in Condition 10 (Events of Default)
occurs.
Whenever this Global Note Certificate is to be exchanged for a Individual Note
Certificate, such Individual Note Certificate shall be issued in an aggregate
principal amount equal to the principal amount of this Global Note Certificate
within five Business Days of the delivery, by or on behalf of the Holder,
Euroclear and/or Clearstream, Luxembourg, or DTC to the Registrar of such
information as is required to complete and deliver such Individual Note
Certificates (including, without limitation, the names and addresses of the
persons in whose names the Individual Note Certificates are to be registered
and the principal amount of each such person's holding) against the surrender
of this Global Note Certificate at the Specified Office (as defined in the
Conditions) of the Registrar. Such exchange shall be effected in accordance
with the provisions of the Agency Agreement and the regulations concerning the
transfer and registration of the Class [A/B/C] Notes scheduled thereto and, in
particular, shall be effected without charge to any Holder or the Note Trustee,
but against such indemnity as the Registrar may reasonably require in respect
of any tax or other duty of whatsoever nature which may be levied or imposed in
connection with such exchange. In this paragraph, "BUSINESS DAY" means a day on
which commercial banks are open for business (including dealings in foreign
currencies) in the city in which the Registrar has its Specified Office.
"INDIVIDUAL EXCHANGE DATE" means a day falling not less than 30 days after that
on which the notice requiring exchange is given and on which banks are open for
business in the city in which the specified office of the Registrar or the
relevant Transfer Agent is located.
Any such exchange may be effected on or after an Individual Exchange Date by
the Holder surrendering this Global Note Certificate to or to the order of the
Registrar. In exchange for this Global Note Certificate, or part thereof to be
exchanged, the Issuer shall deliver, or procure the delivery of, duly executed
and authenticated Individual Note Certificates in an aggregate
- 55 -
principal amount equal to the principal amount of this Global Note Certificate
submitted for exchange.
If, for any actual or alleged reason which would not have been applicable had
there been no exchange of this Global Note Certificate or in any other
circumstances whatsoever, the Issuer does not perform or comply with any one or
more of what are expressed to be its obligations under any Individual Note
Certificates, then any right or remedy relating in any way to the obligation(s)
in question may be exercised or pursued on the basis of this Global Note
Certificate, despite its stated cancellation after its exchange in full as an
alternative, or in addition, to the Individual Note Certificates. With this
exception, upon exchange in full of this Global Note Certificate, this Global
Note Certificate shall become void. In the event that any such right or remedy
is so exercised or pursued on the basis of this Global Note Certificate, the
Issuer undertakes that it will take all necessary steps or, as appropriate,
will procure that such steps are taken, (including the obtaining of all
necessary approvals) to ensure that the interests in this Global Note
Certificate are eligible for trading in the Euroclear and Clearstream,
Luxembourg clearing systems, as appropriate, and undertakes that such interests
will be valid, legally binding and enforceable obligations of the Issuer.
BENEFIT OF CONDITIONS
Except as otherwise described herein, this Global Note Certificate is subject
to the Conditions, the Agency Agreement and the Arran Funding Note Trust Deed
and, until it is exchanged for Individual Note Certificates in whole, its
Holder shall in all respects be entitled to the same benefits as if it were the
holder of the Individual Note Certificates for which it may be exchanged and as
if such Individual Note Certificates had been issued on the Closing Date.
AMENDMENTS TO THE CONDITIONS
The following provisions modify the effect of the Conditions:
PAYMENTS Payments of principal upon final redemption in respect of the Class
[A/B/C] Notes represented by this Global Note Certificate will be made against
presentation and (if no further payment is to be made on it) surrender of this
Global Note Certificate at the Specified Office of the Registrar or such other
Transfer Agent or Paying Agent as shall have been notified to the relevant
Noteholders for such purpose and shall be effective to satisfy and discharge
(pro tanto) the corresponding liabilities of the Issuer in respect of the Class
[A/B/C] Notes. Payments of interest and principal before final redemption in
respect of the Class [A/B/C] Notes represented by this Global Note Certificate
will be made to the holder (or to the first named of joint holders) of the Note
appearing on the Register at the close of business on the fifteenth day before
the relevant due date (the "RECORD DATE") by wire transfer in same day funds on
the due date to an account denominated in the relevant currency maintained by
the payee with a bank in a city in which banks have access to the TARGET
system. On each occasion on which a payment of interest or principal is made in
respect of this Global Note Certificate, the Issuer shall procure that the same
is noted on the Register and in the case of a payment of principal, that the
aggregate principal amount of this Global Note Certificate is decreased
accordingly.
NOTICES So long as any Class [A/B/C] Notes are represented by this Global Note
Certificate and this Global Note Certificate is held on behalf of a clearing
system, notices to the holders of such Notes may be given by delivery of the
relevant notice to that clearing system for
- 56 -
communication by it to entitled accountholders in substitution for publication
as required by the Conditions, except that so long as such Notes are listed on
the London Stock Exchange and the rules of such Exchange so require, notices
shall also be published in a leading newspaper having general circulation in
England (which is expected to be the Financial Times) for so long as such
publication is required by the rules of the London Stock Exchange. Any such
notice shall be deemed to have been given on the date of first publication.
PRESCRIPTION Claims against the Issuer in respect of the principal and interest
on the Class [A/B/C] Notes issued by it that are represented by this Global
Note Certificate will become void unless this Global Note Certificate is
presented for payment within a period of ten (10) years (in the case of
principal) and five (5) years (in the case of interest) from the appropriate
Relevant Date.
MEETINGS The Holder shall be treated as two persons for the purposes of any
quorum requirements of, or the right to demand a poll at, a Meeting of
Noteholders and at any such Meeting shall be deemed to have the number of votes
specified in Clause 16 (Votes) of Schedule 3 (Provisions for Meetings of
Noteholders) of the Arran Funding Note Trust Deed in relation to the principal
amount of Class [A/B/C] Notes for which the Global Note Certificate may be
exchanged.
TRUSTEE'S POWERS In considering the interests of the Class [A/B/C] Noteholders
while this Global Note Certificate is registered in the name of any nominee for
a clearing system, the Note Trustee may have regard to any information provided
to it by such clearing system or its operator.
CANCELLATION Cancellation of any Note required by the Conditions to be
cancelled will be effected by reduction in the principal amount of this Global
Note Certificate and a corresponding notation made on the Register.
CONDITIONS TO APPLY
Save as otherwise provided herein, the Holder shall have the benefit of, and be
subject to, the Conditions. For the purposes of this Global Note Certificate,
any reference in the Conditions to "INDIVIDUAL CERTIFICATE" or "INDIVIDUAL
CERTIFICATES" shall, except where the context otherwise requires, be construed
so as to include this Global Note Certificate.
LEGENDS
The statements set forth in the legends above, if applicable, are an integral
part of this Global Note Certificate and by acceptance thereof each Holder of
this Global Note Certificate agrees to be subject to and bound by the terms and
conditions set forth in such Legend, if applicable.
DETERMINATION OF ENTITLEMENT
This Global Note Certificate is evidence of entitlement only and is not a
document of title. Entitlements are determined by entry in the Register and
only the Holder is entitled to payment in respect of this Global Note
Certificate.
GOVERNING LAW
- 57 -
This Global Note Certificate is governed by, and shall be construed in
accordance with, English law.
CONTRACTS (RIGHT OF THIRD PARTIES) ACT 1999
A person who is not a party hereto has no rights under the Contracts (Right of
Third Parties) ▇▇▇ ▇▇▇▇ to enforce any terms herein, but this does not affect
any right or remedy of a third party which exists or is available apart from
that Act.
AUTHENTICATION
This Global Note Certificate shall not be valid for any purpose until it has
been authenticated for and on behalf of the Registrar.
AS WITNESS the manual or facsimile signature of a duly authorised person on
behalf of the Issuer.
ARRAN FUNDING LIMITED
By: __________________________________
[manual or facsimile signature]
(duly authorised)
AUTHENTICATED for and on behalf of
the Registrar without recourse, warranty or liability
By: __________________________________
[manual signature]
(duly authorised)
[Attached to the Global Note Certificate]
[Terms and Conditions as set out in the Arran Funding Note Trust Deed and
applicable Arran Funding Note Trust Deed Supplement]
- 58 -
REGISTERED OFFICE OF THE ISSUER
ARRAN FUNDING LIMITED
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
TRUSTEE PRINCIPAL PAYING AGENT, AND
[Name] AGENT BANK
[Name] [Address]
[Address]
PAYING AGENT TRANSFER AGENT AND REGISTRAR
[Name] [Address]
- 59 -
FORM OF TRANSFER
FOR VALUE RECEIVED .........................., being the registered holder of
this Class [A/B/C] Global Note Certificate, hereby transfers
to.............................................................................
..........................................................
of.............................................................................
................................................................................
.................................,
[Currency] ............................ in principal amount of the SERIES
[*][CURRENCY][AMOUNT] CLASS [A/B/C] [FLOATING/[%] FIXED RATE NOTES DUE [*]]
(the "CLASS [A/B/C] NOTES") of Arran Funding Limited (the "ISSUER") and
irrevocably requests and authorises the Registrar, in its capacity as registrar
in relation to the Class [A/B/C] Notes (or any successor to the Registrar, in
its capacity as such) to effect the relevant transfer by means of appropriate
entries in the register kept by it.
Dated: .....................
By: .....................
(duly authorised)
NOTES
(a) The name of the person by or on whose behalf this form of transfer is
signed must correspond with the name of the registered holder as it
appears on the face of this Class A Global Note Certificate.
(b) A representative of such registered holder should state the capacity in
which he signs, e.g. executor.
(c) The signature of the person effecting a transfer shall conform to any
list of duly authorised specimen signatures supplied by the registered
holder or be certified by a recognised bank, notary public or in such
other manner as the Registrar may require.
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[Terms and Conditions as set out in the Arran Funding Note Trust Deed and
applicable Arran Funding Note Trust Deed Supplement]
- 61 -
REGISTERED OFFICE OF THE ISSUER
ARRAN FUNDING LIMITED
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
TRUSTEE PRINCIPAL PAYING AGENT, AND
[Name] AGENT BANK
[Address] [Name]
[Address]
PAYING AGENT TRANSFER AGENT AND REGISTRAR
[Name] [Name]
[Address] [Address]
- 62 -
PART B
FORM OF INDIVIDUAL NOTE CERTIFICATE
Serial Number: ............
ARRAN FUNDING LIMITED
(a public limited liability company incorporated with in Jersey, Channel
Islands)
SERIES [*][CURRENCY][AMOUNT] CLASS [A/B/C] [FLOATING/[%] FIXED RATE
NOTES DUE [*]]
INDIVIDUAL NOTE CERTIFICATE
This Class [A/B/C] Note Certificate is issued in respect of the [currency]
[amount] Class [A/B/C] [Floating/Fixed] Rate Notes due [*] (the "NOTES") of
Arran Funding Limited (the "ISSUER"). The Class [A/B/C] Notes are constituted
by, are subject to, and have the benefit of, a trust deed dated [*] (as amended
or supplemented from time to time, the "TRUST DEED") between the Issuer and The
Bank of New York as note trustee (the "TRUSTEE", which expression includes all
persons for the time being appointed trustee or trustees under the Trust Deed)
and are the subject of a agency agreement (as amended or supplemented from time
to time, the "AGENCY AGREEMENT") dated [*] and made between the Issuer, The
Bank of New York as registrar (the "REGISTRAR", which expression includes any
successor registrar appointed from time to time in connection with the Notes),
The Bank of New York as principal paying agent, the other paying agents and the
transfer agents named therein and the Trustee.
Any reference herein to the "CONDITIONS" is to the terms and conditions of the
Notes endorsed hereon and any reference to a numbered "CONDITION" is to the
correspondingly numbered provision thereof.
This is to certify that:
.............................
of ..........................
.............................
is the person registered in the register maintained by the Registrar in
relation to the Notes (the "REGISTER") as the duly registered holder or, if
more than one person is so registered, the first-named of such persons (the
"HOLDER") of:
[CURRENCY] [AMOUNT]
[AMOUNT IN FIGURES]
in aggregate principal amount of the Notes.
The Issuer, for value received, hereby promises to pay such principal sum to
the Holder on interest payment date falling in [*] or on such earlier date or
dates as the same may become payable in accordance with the Conditions, and to
pay interest on such principal sum in arrear
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on the dates and at the rate specified in the Conditions, together with any
additional amounts payable in accordance with the Conditions, all subject to
and in accordance with the Conditions.
This Class [A/B/C] Note Certificate is evidence of entitlement only and is not
a document of title. Entitlements are determined by the Register and only the
Holder is entitled to payment in respect of this Note Certificate.
This Class [A/B/C] Note Certificate shall not be valid for any purpose until it
has been authenticated for and on behalf of The Bank of New York as registrar.
AS WITNESS the manual or facsimile signature of a duly authorised person on
behalf of the Issuer.
ARRAN FUNDING LIMITED
By: ........................
[manual or facsimile signature]
(duly authorised)
ISSUED as of [issue date]
AUTHENTICATED for and on behalf of
the Registrar
as registrar without recourse, warranty
or liability
By: ........................
[manual signature]
(duly authorised)
[Attached to the Individual Note Certificate]
[Terms and Conditions as set out in the Arran Funding Note Trust
Deed and applicable Arran Funding Note Trust Deed Supplement]
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FORM OF TRANSFER
FOR VALUE RECEIVED ......................., being the registered holder of this
Class [A/B/C] Note Certificate, hereby transfers to............................
.....................................................of.........................
................................................................................
................................................................................
.. [Currency]..................... in principal amount of the SERIES [*]
[CURRENCY][AMOUNT] CLASS [A/B/C] [FLOATING/[%] FIXED RATE NOTES DUE [*]] (the
"CLASS [A/B/C] NOTES") of Arran Funding Limited (the "ISSUER") and irrevocably
requests and authorises the Registrar in relation to the Class [A/B/C] Notes
(or any successor to the Registrar, in its capacity as such) to effect the
relevant transfer by means of appropriate entries in the register kept by it.
Dated: ........................
By: ........................
(duly authorised)
NOTES
(a) The name of the person by or on whose behalf this form of transfer is
signed must correspond with the name of the registered holder as it
appears on the face of this Class [A/B/C] Note Certificate.
(b) A representative of such registered holder should state the capacity in
which he signs, e.g. executor.
(c) The signature of the person effecting a transfer shall conform to any
list of duly authorised specimen signatures supplied by the registered
holder or be certified by a recognised bank, notary public or in such
other manner as the Registrar may require.
(d) Any transfer of Class [A/B/C] Notes shall be in an amount equal to
[[POUND]/$/[EURO]] 50,000 or any integral multiple of
[[POUND]/$/[EURO]]10,000 in excess thereof.
- 65 -
[Terms and Conditions as set out in the Arran Funding Note Trust Deed
and applicable Arran Funding Note Trust Deed Supplement]
REGISTERED OFFICE OF THE ISSUER
ARRAN FUNDING LIMITED
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
TRUSTEE PRINCIPAL PAYING AGENT, AND
[Name] AGENT BANK
[Address] [Name]
[Address]
PAYING AGENT TRANSFER AGENT AND REGISTRAR
[Name] [Name]
[Address] [Address]
- 66 -
PART C
TERMS AND CONDITIONS
- 67 -
SCHEDULE 3
PROVISIONS FOR MEETINGS OF NOTEHOLDERS
1. DEFINITIONS
In this Arran Funding Note Trust Deed and the Conditions, the following
expressions have the following meanings:
1.1 In relation to Meetings:
"RELEVANT FRACTION" means:
(a) for all business other than voting on an Extraordinary
Resolution, one tenth;
(b) for voting on any Extraordinary Resolution other than one
relating to a Basic Terms Modification, two or more persons
holding or representing a clear majority of the aggregate
principal amount outstanding of the relevant Series; and
(c) for voting on any Extraordinary Resolution relating to a Basic
Terms Modification, two or more persons holding or
representing in aggregate not less than 75 per cent. of the
aggregate principal amount outstanding of the relevant Series;
PROVIDED THAT, so long as at least the Relevant Fraction of the
aggregate principal amount of the outstanding Notes is represented by
the Global Note Certificate or a single Individual Note Certificate, a
Voter appointed in relation thereto or being the holder of the Notes
represented thereby shall be deemed to be two Voters for the purposes
set out in this definition;
PROVIDED FURTHER THAT, in the case of a Meeting which has resumed after
adjournment for want of a quorum, it means:
(i) for all business other than voting on an Extraordinary
Resolution relating to a Basic Terms Modification, two or more
persons holding or representing a majority of the aggregate
principal amount outstanding of each Series of Note; and
(ii) for voting on any Extraordinary Resolution relating to a Basic
Terms Modification, two or more persons holding or
representing in the aggregate not less than 25 per cent. of
the aggregate principal amount outstanding of each Series of
Note;
"WRITTEN RESOLUTION" means a resolution in writing signed by or on
behalf of all holders of Notes who for the time being are entitled to
receive notice of a Meeting in accordance with the provisions of this
Schedule, whether contained in one document or several documents in the
same form, each signed by or on behalf of one or more such holders of
the Notes;
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"24 HOURS" means a period of 24 hours including all or part of a day
(disregarding for this purpose the day upon which such Meeting is to be
held) upon which banks are open for business in both the place where the
relevant Meeting is to be held and in each of the places where the
Paying Agents have their Specified Offices and such period shall be
extended by one period or, to the extent necessary, more periods of 24
hours until there is included as aforesaid all or part of a day upon
which banks are open for business as aforesaid; and
"48 HOURS" means 2 consecutive periods of 24 hours.
1.2 "BLOCK VOTING INSTRUCTION" means, in relation to any Meeting, a document
in the English language issued by a Registrar:
(a) certifying:
(i) that certain specified Notes (each a "BLOCKED NOTE")
have been blocked in an account with a clearing system
and will not be released until the conclusion of the
Meeting and that the holder of each Blocked Note or a
duly authorised person on its behalf has instructed the
Registrar that the votes attributable to such Blocked
Note are to be cast in a particular way on each
resolution to be put to the Meeting; or
(ii) that each registered holder of certain specified Notes
(each a "RELEVANT NOTE") or a duly authorised person on
its behalf has instructed the Registrar that the votes
attributable to each Relevant Note held by it are to be
cast in a particular way on each resolution to be put
to the Meeting; and
in each case that, during the period of 48 hours before the
time fixed for the Meeting, such instructions may not be
amended or revoked;
(b) listing the total principal amount of the Blocked Notes and
the Relevant Notes, distinguishing for each resolution between
those in respect of which instructions have been given to vote
for, or against, the resolution; and
(c) authorising a named individual or individuals to vote in
respect of the Blocked Notes and the Relevant Notes in
accordance with such instructions;
"FORM OF PROXY" means, in relation to any Meeting, a document in the
English language available from the Registrar signed by a Noteholder or,
in the case of a corporation, executed under its seal or signed on its
behalf by a duly authorised officer and delivered to the Registrar not
later than 48 hours before the time fixed for such Meeting, appointing a
named individual or individuals to vote in respect of the Notes held by
such Noteholder;
"PROXY", in the case of Notes means, in relation to any Meeting, a
person appointed to vote under a Block Voting Instruction or a Form of
Proxy other than:
(a) any such person whose appointment has been revoked and
in relation to whom the Registrar has been notified in
writing of such revocation by the time which is 48
hours before the time fixed for such Meeting; and
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(b) Any such person appointed to vote at a Meeting which
has been adjourned for want of a quorum and who has not
been re-appointed to vote at the Meeting when it is
resumed;
"VOTER" means, in relation to any Meeting, (a) a Proxy or (b) (subject
to paragraph 5 (Record Date) below) a Note holder; provided, however,
that (subject to paragraph 5 (Record Date) below) any Note holder which
has appointed a Proxy under a Block Voting Instruction or Form of Proxy
shall not be a "Voter" except to the extent that such appointment has
been revoked and the Registrar notified in writing of such revocation at
least 48 hours before the time fixed for such Meeting;
2. ISSUE OF VOTING CERTIFICATES, BLOCK VOTING INSTRUCTIONS AND FORMS OF
PROXY
The holder of a Note may require the Registrar to issue a Block Voting
Instruction by arranging (to the satisfaction of the Registrar) for such
Note to be blocked in an account with a clearing system not later than
48 hours before the time fixed for the relevant Meeting. The holder of a
Note may require the Registrar to issue a Block Voting Instruction by
delivering to the Registrar written instructions not later than 48 hours
before the time fixed for the relevant Meeting. Any holder of a Note may
obtain an uncompleted and unexecuted Form of Proxy from the Registrar. A
Block Voting Instruction and a Form of Proxy cannot be outstanding
simultaneously in respect of the same Note.
3. REFERENCES TO DEPOSIT/RELEASE OR BLOCKING/RELEASE OF NOTES
Where Notes are represented by a Global Note Certificate or are held in
definitive form within a clearing system, references to the blocking, or
release, of Notes shall be construed in accordance with the usual
practices (including blocking the relevant account) of such clearing
system.
4. VALIDITY OF BLOCK VOTING INSTRUCTIONS AND FORMS OF PROXY
Block Voting Instructions in relation to Notes and Forms of Proxy shall
be valid only if deposited at the specified office of the Registrar or
at some other place approved by the Note Trustee, at least 24 hours
before the time fixed for the relevant Meeting or the Chairman decides
otherwise before the Meeting proceeds to business. If the Note Trustee
requires, a notarised copy of each Block Voting Instruction and
satisfactory proof of the identity of each Proxy named therein shall be
produced at the Meeting, but the Note Trustee shall not be obliged to
investigate the validity of any Block Voting Instruction or the
authority of any Proxy.
5. RECORD DATE
The Issuer may fix a record date for the purposes of any Meeting or any
resumption thereof following its adjournment for want of a quorum
PROVIDED THAT such record date is not more than 10 days prior to the
time fixed for such Meeting or (as the case may be) its resumption. The
person in whose name a Note is registered in the Register on the record
date at close of business in the city in which the Registrar has its
Specified Office
- 70 -
shall be deemed to be the holder of such Note for the purposes of such
Meeting and notwithstanding any subsequent transfer of such Note or
entries in the Register.
6. CONVENING OF MEETING
The Issuer or the Note Trustee may convene a Meeting at any time, and
the Note Trustee shall be obliged to do so subject to its being
indemnified and/or secured to its satisfaction upon the request in
writing of Noteholders holding not less than one tenth of the aggregate
principal amount of the outstanding Notes. Every Meeting shall be held
on a date, and at a time and place, approved by the Note Trustee.
7. NOTICE
7.1 At least 21 days' notice (exclusive of the day on which the notice is
given and of the day on which the relevant Meeting is to be held)
specifying the date, time and place of the Meeting shall be given to the
registrar, (with a copy to the Issuer) where the Meeting is convened by
the Note Trustee or, where the Meeting is convened by the Issuer, the
Note Trustee; and
7.2 The notice shall set out the full text of any resolutions to be proposed
unless the Trustee agrees that the notice shall instead specify the
nature of the resolutions without including the full text and shall
state that Notes may be blocked in clearing systems for the purposes of
appointing Proxies under Block Voting Instructions until 48 hours before
the time fixed for the Meeting and a Note holder may appoint a Proxy
either under a Block Voting Instruction by delivering written
instructions to the Registrar or by executing and delivering a Form of
Proxy to the Specified Office of the Registrar, in either case until 48
hours before the time fixed for the Meeting.
8. CHAIRMAN
An individual (who may, but need not, be a Noteholder) nominated in
writing by the Note Trustee may take the chair at any Meeting but, if no
such nomination is made or if the individual nominated is not present
within 15 minutes after the time fixed for the Meeting, those present
shall elect one of themselves to take the chair failing which, the
Issuer may appoint a Chairman. The Chairman of an adjourned Meeting need
not be the same person as was the Chairman of the original Meeting.
9. QUORUM
The quorum at any Meeting shall be at least two Voters representing or
holding not less than the Relevant Fraction of the aggregate principal
amount of the outstanding Notes; PROVIDED, HOWEVER, THAT, so long as at
least the Relevant Fraction of the aggregate principal amount of the
outstanding Notes is represented by the Global Note Certificate or a
single Individual Note Certificate, a Voter appointed in relation
thereto or being the holder of the Notes represented thereby shall be
deemed to be two Voters for the purpose of forming a quorum.
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10. ADJOURNMENT FOR WANT OF QUORUM
If within 15 minutes after the time fixed for any Meeting a quorum is
not present, then:
10.1.1 in the case of a Meeting requested by Noteholders, it shall be
dissolved; and
10.1.2 in the case of any other Meeting (unless the Issuer and the
Note Trustee otherwise agree), it shall be adjourned for such
period (which shall be not less than 14 days and not more than
42 days) and to such place as the Chairman determines (with
the approval of the Note Trustee); PROVIDED, HOWEVER, THAT:
(a) the Meeting shall be dissolved if the Issuer and the
Note Trustee together so decide; and
(b) no Meeting may be adjourned more than once for want of
a quorum.
11. ADJOURNED MEETING
The Chairman may, with the consent of, and shall if directed by, any
Meeting adjourn such Meeting from time to time and from place to place,
but no business shall be transacted at any adjourned Meeting except
business which might lawfully have been transacted at the Meeting from
which the adjournment took place.
12. NOTICE FOLLOWING ADJOURNMENT
Paragraph 7 (Notice) shall apply to any Meeting which is to be resumed
after adjournment for want of a quorum save that:
12.1.1 10 days' notice (exclusive of the day on which the notice is
given and of the day on which the Meeting is to be resumed)
shall be sufficient; and
12.1.2 the notice shall specifically set out the quorum requirements
which will apply when the Meeting resumes.
It shall not be necessary to give notice of the resumption of a Meeting
which has been adjourned for any other reason.
13. PARTICIPATION
The following may attend and speak at a Meeting:
13.1.1 Voters;
13.1.2 representatives of the Issuer and the Note Trustee;
13.1.3 the financial advisers of the Issuer and the Note Trustee;
13.1.4 the legal counsel to the Issuer and the Note Trustee and such
advisers;
13.1.5 any other person approved by the Meeting or the Note Trustee;
and
13.1.6 the Registrar.
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14. SHOW OF HANDS
Every question submitted to a Meeting shall be decided in the first
instance by a show of hands. Unless a poll is validly demanded before or
at the time that the result is declared, the Chairman's declaration that
on a show of hands a resolution has been passed, passed by a particular
majority, rejected or rejected by a particular majority shall be
conclusive, without proof of the number of votes cast for, or against,
the resolution. Where there is only one Voter, this paragraph shall not
apply and the resolution will immediately be decided by means of a poll.
15. POLL
A demand for a poll shall be valid if it is made by the Chairman, the
Issuer, the Note Trustee or one or more Voters representing or holding
not less than one fiftieth of the aggregate principal amount of the
outstanding Notes. The poll may be taken immediately or after such
adjournment as the Chairman directs, but any poll demanded on the
election of the Chairman or on any question of adjournment shall be
taken at the Meeting without adjournment. A valid demand for a poll
shall not prevent the continuation of the relevant Meeting for any other
business as the Chairman directs.
16. VOTES
Every Voter shall have:
16.1.1 on a show of hands, one vote; and
16.1.2 on a poll, one vote in respect of each [Euro]/[[POUND]1]/[US$]
or such other amount as the Note Trustee may in its absolute
discretion stipulate (or, in the case of Meetings of holders
of Notes denominated in another currency, such amount in such
other currency as the Note Trustee in its absolute discretion
may stipulate) in nominal amount of the outstanding Note(s)
represented or held by him.
Unless the terms of any Form of Proxy state otherwise, a Voter shall not
be obliged to exercise all the votes to which he is entitled or to cast
all the votes which he exercises in the same way. In the case of a
voting tie the Chairman shall have a casting vote.
In the case of any Meeting of holders of more than one Series or Class
of Notes where not all such Series or Class are in the same currency,
the principal amount of such Notes shall for all purposes in this
Schedule (whether inter alia in respect of the Meeting or any poll
resulting therefrom), be the equivalent in U.S. Dollars translated at
the rate specified in the relevant Final Terms relating to such Notes.
In such circumstances, on any poll each person present shall have one
vote for each Unit of Notes (converted as above) which he holds.
In this paragraph, a "UNIT" means the lowest denomination of the Notes
as stated in the applicable Arran Funding Note Trust Deed Supplement or
in the case of a Meeting of Noteholders of more than one Series, shall
be the lowest common denominator of the lowest denomination of the
Notes.
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17. VALIDITY OF VOTES BY PROXIES
17.1 Any vote by a Proxy in accordance with the Form of Proxy shall be valid
even if such Form of Proxy or any instruction pursuant to which it was
given has been amended or revoked, PROVIDED THAT neither the Issuer, the
Note Trustee nor the Chairman has been notified in writing of such
amendment or revocation by the time which is 24 hours before the time
fixed for the relevant Meeting; or
17.2 Unless revoked, any appointment of a Proxy under a Form of Proxy in
relation to a Meeting shall remain in force in relation to any
resumption of such Meeting following an adjournment; provided, however,
that no such appointment of a Proxy in relation to a Meeting originally
convened which has been adjourned for want of a quorum shall remain in
force in relation to such Meeting when it is resumed. Any person
appointed to vote at such a Meeting must be re-appointed under a Form of
Proxy to vote at the Meeting when it is resumed.
18. POWERS
A Meeting shall have power (exercisable only by Extraordinary
Resolution), without prejudice to any other powers conferred on it or
any other person:
18.1.1 to approve any Basic Terms Modification;
18.1.2 to approve any proposal by the Issuer for any modification,
abrogation, variation or compromise of any provisions of this
Arran Funding Note Trust Deed or the Conditions or any
arrangement in respect of the obligations of the Issuer under
or in respect of the Notes;
18.1.3 (Other than as permitted under Clause 10.3 (Substitution) of
this Arran Funding Note Trust Deed) to approve the
substitution of any person for the Issuer (or any previous
substitute) as principal obligor under the Notes;
18.1.4 (Other than as permitted under Clause 10.3 (Substitution) of
this Arran Funding Note Trust Deed) to waive any breach or
authorise any proposed breach by the Issuer of its obligations
under or in respect of this Arran Funding Note Trust Deed or
the Notes or any act or omission which might otherwise
constitute an Event of Default under the Notes;
18.1.5 to remove any Note Trustee;
18.1.6 to approve the appointment of a new Note Trustee;
18.1.7 to authorise the Note Trustee (subject to its being
indemnified and/or secured to its satisfaction) or any other
person to execute all documents and do all things necessary to
give effect to any Extraordinary Resolution;
18.1.8 to discharge or exonerate the Note Trustee from any liability
in respect of any act or omission for which it may become
responsible under this Arran Funding Note Trust Deed or the
Notes;
- 74 -
18.1.9 to give any other authorisation or approval which under this
Arran Funding Note Trust Deed or the Notes is required to be
given by Extraordinary Resolution; and
18.1.10 to appoint any persons as a committee to represent the
interests of the Noteholders and to confer upon such committee
any powers which the Noteholders could themselves exercise by
Extraordinary Resolution.
19. EXTRAORDINARY RESOLUTION BINDS ALL HOLDERS
An Extraordinary Resolution shall be binding, subject as provided by
paragraph 23 (Several Series) and paragraph 24 (Several Classes) below
upon all Noteholders and each of the Noteholders shall be bound to give
effect to it accordingly. Notice of the result of every vote on an
Extraordinary Resolution shall be given to the Noteholders and the
Registrar with a copy to the Issuer, and the Note Trustee within 14 days
of the conclusion of the Meeting.
20. MINUTES
Minutes of all resolutions and proceedings at each Meeting shall be
made. The Chairman shall sign the minutes, which shall be prima facie
evidence of the proceedings recorded therein. Unless and until the
contrary is proved, every such Meeting in respect of the proceedings of
which minutes have been summarised and signed shall be deemed to have
been duly convened and held and all resolutions passed or proceedings
transacted at it to have been duly passed and transacted.
21. WRITTEN RESOLUTION
A Written Resolution shall take effect as if it were an Extraordinary
Resolution.
22. FURTHER REGULATIONS
Subject to all other provisions contained in this Arran Funding Note
Trust Deed, the Note Trustee may without the consent of the Issuer or
the Noteholders prescribe such further regulations regarding the holding
of Meetings of Noteholders and attendance and voting at them as the Note
Trustee may in its sole discretion determine.
23. SEVERAL SERIES
The following provisions shall apply where outstanding Notes belong to
more than one Series:
23.1.1 Business which in the opinion of the Note Trustee affects the
Notes of only one Series shall be transacted at a separate
Meeting of the holders of the Notes of that Series.
23.1.2 Business which in the opinion of the Note Trustee affects the
Notes of more than one Series but does not give rise to an
actual or potential conflict of interest between the holder of
Notes or one such Series and the holders of Notes of any other
such Series shall be transacted either at separate Meetings of
the holders of the Notes of each such Series or at a single
Meeting of the holders of the
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Notes of all such Series, as the Note Trustee shall in its
absolute discretion determine.
23.1.3 Business which in the opinion of the Note Trustee affects the
Notes of more than one Series and gives rise to an actual or
potential conflict of interest between the holders of Notes of
one such Series and the holders of Notes of any other such
Series shall be transacted at separate Meetings of the holders
of the Notes of each such Series.
23.1.4 The preceding paragraphs of this Schedule shall be applied as
if references to the Notes and Noteholders were to the Notes
of the relevant Series and to the holders of such Notes.
23.1.5 For the avoidance of doubt, any instruction to be given by the
Noteholders to the Note Trustee in respect of enforcing the
Security created pursuant to Clause 4.1 (Creation of Security)
and Clause 4.6 (Assignment of Issuer Jersey Secured Property)
of the Arran Funding Note Trust Deed shall be given at a
single meeting of holders of the Notes of all Series.
23.1.6 In this paragraph, "BUSINESS" includes (without limitation)
the passing or rejection of any resolution.
24. SEVERAL CLASSES
24.1 Without prejudice to paragraph 23 (Several Series) The following
provisions shall apply where outstanding Notes belong to more than one
Class:
24.1.1 Business which in the opinion of the Trustee affects the Notes
of only one Class shall be transacted at a separate Meeting of
the holders of the Notes of that Class;
24.1.2 Business which in the opinion of the Trustee affects the Notes
of more than one Class but does not give rise to an actual or
potential conflict of interest between the holder of Notes or
one such Class and the holders of Notes of any other such
Class shall be transacted either at separate Meetings of the
holders of the Notes of each such Class or at a single Meeting
of the holders of the Notes of all such Class, as the Trustee
shall in its absolute discretion determine.
24.1.3 Business which in the opinion of the Trustee affects the Notes
of more than one Class and gives rise to an actual or
potential conflict of interest between the holders of Notes of
one such Class and the holders of Notes of any other such
Class shall be transacted at separate Meetings of the holders
of the Notes of each such Class
24.1.4 The preceding paragraphs of this Schedule shall be applied as
if references to the Notes and Noteholders were to the Notes
of the relevant Class and to the holders of such Notes.
24.1.5 In this paragraph, "BUSINESS" includes (without limitation)
the passing or rejection of any resolution.
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SCHEDULE 4
NOTICE OF ASSIGNMENT - ISSUER NTD JERSEY SECURED PROPERTY
To: Mourant & Co Limited (as Corporate Services Provider)
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
and to The Bank of New York, as Security Trustee
From: The Bank of New York, as Note Trustee under the Arran Funding Note
Trust Deed relating to Arran Funding Medium Term Note Programme
Arran Funding Limited
Dear Sirs,
ARRAN FUNDING LIMITED (THE "ISSUER")
We hereby give you notice that by an Arran Funding Note Trust Deed relating to
the Arran Funding Medium Term Note Programme (the "ARRAN FUNDING NOTE TRUST
DEED") dated [*] 2005 and made between the Note Trustee and the Issuer, inter
alia, the following property (the Issuer NTD Jersey Secured Property) has been
assigned by the Issuer to the Note Trustee on behalf of the Secured Creditors
identified therein:
Issuer NTD Jersey Secured Property: to the extent they constitute Jersey
Assets, all the Issuer's rights, title,
interest and benefit present and future
in, to and under the (i) Corporate
Services Agreement; and (ii) the
security interest created by the Loan
Note Issuer in favour of the Security
Trustee pursuant to the Security Trust
Deed in the Security Trust Deed Jersey
Assignment Property; including, in each
case without limitation, all rights to
receive payment of any amount which may
become payable to the Issuer thereunder
or payment received by the Issuer
thereunder or rights to serve notices
and/or take such steps as are required
to cause payments to become due and
payable thereunder and all rights of
action in respect of any breach thereof
and all rights to receive damages or
obtain other relief in respect thereof.
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Words and expressions defined in or incorporated by reference into the Arran
Funding Note Trust Deed shall, unless expressly defined herein or unless the
context otherwise requires, bear the same meaning in this Notice.
A copy of the Arran Funding Note Trust Deed is attached to this Notice.
Henceforth the provisions contained therein shall apply to the Issuer NTD
Jersey Secured Property assigned by the Issuer pursuant to the Arran Funding
Note Trust Deed.
This notice is not capable of revocation by the Issuer. Please acknowledge
receipt of this Notice by signing the enclosed duplicate of this Notice.
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This Notice shall be governed by and construed in accordance with Jersey law.
Yours faithfully,
__________________________________
for and on behalf of
THE BANK OF NEW YORK, LONDON BRANCH
as Note Trustee
__________________________________
ARRAN FUNDING LIMITED
as Issuer
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ACKNOWLEDGEMENT AND ACCEPTANCE
We acknowledge receipt of this Notice and accept the provisions contained
herein. We confirm as follows:
1. other than as set out in the Corporate Services Agreement (in the case
of Mourant & Co Limited) or in the Security Trust Deed (in the case of
the Security Trustee) and the Loan Notes, we do not have, and will not
make or exercise, any claims or demands, any rights of counterclaim,
rights of set-off or any other rights against the Issuer in respect of
the Issuer NTD Jersey Secured Property or any part thereof; and
2. we have not, as of the date hereof, received any notice that any third
party has or will have any right or interest whatsoever in or has made
or will be making any claim or demand or taking any action whatsoever
against the Issuer NTD Jersey Secured Property or any part thereof.
We undertake that, in the event of our becoming aware at any time that any
person or entity other than the Note Trustee (as trustee for the Secured
Creditors) has or will have any right or interest whatsoever in or has or will
be making any claim or demand or taking any action whatsoever against the
Issuer NTD Jersey Secured Property or any part thereof, we will immediately
give written notice of any of the terms of such right or interest, claim or
demand or action to both the Note Trustee and the Issuer.
__________________________________
For and on behalf of
MOURANT & CO LIMITED
as Corporate Services Provider
Date.....................
__________________________________
For and on behalf of
THE BANK OF NEW YORK
as Security Trustee
Date.....................
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EXECUTION CLAUSES
EXECUTED AS A DEED )
For and on behalf of )
THE BANK OF NEW YORK )
BY )
Authorised Signatory
EXECUTED AS A DEED by )
For and on behalf of )
ARRAN FUNDING LIMITED )
In the presence of:
Signature of Witness: __________________________________
Name of Witness: __________________________________
Address of Witness: __________________________________
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