Exhibit 4.5
▇▇▇▇▇▇▇▇ LIMITED LIABILITY PARTNERSHIP
CHANCE
ARRAN FUNDING LIMITED
as Issuer
THE BANK OF NEW YORK
as Principal Paying Agent, Agent Bank, Registrar and Transfer Agent
THE BANK OF NEW YORK LONDON BRANCH
as Paying Agent and Note Trustee
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ARRAN FUNDING MASTER FRAMEWORK AGREEMENT
RELATING TO
ARRAN FUNDING MEDIUM TERM NOTE PROGRAMME
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CONTENTS
CLAUSE PAGE
1. Interpretation.........................................................2
2. Common Terms...........................................................2
3. Governing Law..........................................................2
4. Execution..............................................................2
Schedule 1 MASTER DEFINITIONS SCHEDULE........................................3
1. Definitions............................................................3
2. Principles Of Interpretation And Construction..........................2
Schedule 2 COMMON TERMS.......................................................3
Part 1 - General Legal Terms...........................................3
1. Further Assurance.....................................................33
2. Entire Agreement......................................................33
3. Application Of Common Terms...........................................33
4. Note Trustee Party To Documents.......................................34
5. Change Of Note Trustee................................................34
6. Services Non-Exclusive................................................34
7. Restriction On Enforcement Of Security And Non-Petition...............35
8. Limited Recourse And Non Petition.....................................35
9. Provisions Relating To The Security Documents.........................36
10. Obligations As Corporate Obligations..................................37
11. Variation Of Documents................................................37
12. Exercise Of Rights And Remedies.......................................38
13. Partial Invalidity....................................................38
14. No Partnership........................................................38
15. Continuation Of Obligations...........................................38
16. Assignment And Subcontracting.........................................38
17. Third Party Transaction Rights........................................39
18. Confidentiality.......................................................39
19. Notices...............................................................41
20. Counterparts..........................................................41
Part 2 Payment Provisions.............................................42
21. Calculations And Payments.............................................42
22. Value Added Tax.......................................................44
23. Withholding Taxes.....................................................45
24. Economic And Monetary Union...........................................45
25. Costs.................................................................46
Part 3 Governing Law Provisions.......................................47
26. Governing Law.........................................................47
27. Jurisdiction..........................................................47
Schedule 3 NOTICES DETAILS...................................................48
Schedule 4 ISSUER'S REPRESENTATIONS AND WARRANTIES...........................51
Part 1 Corporate Representations And Warranties Of The.................51
Part 2 Transaction Document Representations And
Warranties Of The Issuer...............................................51
Schedule 5 ISSUER COVENANTS..................................................53
THIS AGREEMENT is made on [*] 2005
BETWEEN:
(1) ARRAN FUNDING LIMITED, a public limited liability company incorporated
in Jersey, Channel Islands (registered number 88474) whose registered
office is at ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇ (the "ISSUER");
(2) THE BANK OF NEW YORK, a New York banking corporation acting through its
office at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇ as principal
paying agent, agent bank, registrar and transfer agent and (in such
respective capacities the "PRINCIPAL PAYING AGENT", the "AGENT BANK",
the "REGISTRAR" and the "TRANSFER AGENT");
(3) THE BANK OF NEW YORK, a New York banking corporation acting through its
office at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ as paying agent (the "PAYING
AGENT" and, together with the Principal Paying Agent, the "PAYING
AGENTS") and 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.
INTRODUCTION:
(A) The Loan Note Issuer has agreed to issue and the Issuer has agreed to
subscribe for Loan Notes.
(B) In order to finance its subscription of each Loan Note, the Issuer will
issue Notes of a particular Series and will use the net proceeds of the
issue to pay the Loan Note Issuer.
(C) The Transaction Parties have agreed to enter into the Documents pursuant
to which the Master Definitions Schedule, Common Terms, representations
and warranties, covenants and other provisions set out in the Agreement
may apply and be incorporated into all or some of the Documents, as set
out in each of such Documents.
THE PARTIES AGREE AS FOLLOWS:
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1. INTERPRETATION
1.1 Unless otherwise defined in this Agreement or the context requires
otherwise, words and expressions used in this Agreement shall have the
meanings and constructions ascribed to them in the Master Definitions
Schedule set out in Schedule 1 (Master Definitions Schedule) of this
Agreement.
2. COMMON TERMS
2.1 INCORPORATION OF COMMON TERMS
Except as provided below, the Common Terms apply to this Agreement,
where applicable, and shall be binding on the parties to this Agreement.
2.2 OBLIGOR/OBLIGEE
Paragraph 1 (Further Assurance) of the Common Terms applies to this
Agreement as if set out in full in this Agreement and as if the Issuer
were the Obligor and the Note Trustee were the Obligee.
3. GOVERNING LAW
This Agreement is governed by and shall be construed in accordance with
English law.
4. EXECUTION
The parties have executed this Agreement on the date stated at the
beginning of this Agreement.
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SCHEDULE1
MASTER DEFINITIONS SCHEDULE
1. DEFINITIONS
Except where the context otherwise requires, the following defined terms
used in the Documents have the meanings set out below (as the same may
be amended and supplemented from time to time):
"ACCOUNT BANK" means RBSI or any other bank at which the Issuer
Distribution Account is to be maintained from time to time;
"ADDITIONAL INTEREST MARGIN" has the meaning given in the relevant Final
Terms (if applicable);
"ADDITIONAL INTEREST" means the interest which will accrue at the then
current rate of interest in respect of any Deferred Interest;
"AFFILIATES" means, with regard to any Person, any other Person
controlling, controlled by or under common control with such Person;
"AGENCY AGREEMENT" means the agreement so named dated on or about the
date hereof between, inter alios, the Issuer, the Agents and the Note
Trustee;
"AGENT BANK" means The Bank of New York as agent bank under the Agency
Agreement;
"AGENTS" means, in relation to any Series, the Principal Paying Agent,
the other Paying Agents, the Agent Bank, the Registrar, the Transfer
Agent or any of them;
"AGGREGATE PRINCIPAL AMOUNT OUTSTANDING" means:
(a) in relation to a Class of Notes under a specific Series, the
aggregate of the Principal Amount Outstanding of each Note in
the Series of such Class, and where any Sub-Class of such
Class is not denominated in US Dollars, the Principal Amount
Outstanding for such notes in the relevant non US Dollar
currency in each such Sub-Class, shall be the Principal Amount
Outstanding converted in US Dollars at the conversion rate
specified in the Final Terms relating to such Sub-Class;
(b) in relation to a Series of Notes, the aggregate of the
Principal Amount Outstanding of each Class of Notes in such
Series;
(c) in relation to all Notes, the Aggregate Principal Amount
Outstanding of all Series.
"AMORTISATION PERIODS" means the Regulated Amortisation Period and the
Rapid Amortisation Period or such other period specified as an
Amortisation Period in the relevant Final Terms and the relevant Arran
Funding Note Trust Deed Supplement in respect of a Series;
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"ANCILLARY RIGHTS" means in relation to an Interest, all ancillary
rights, accretions and supplements to such Interest, including any
guarantees or indemnities in respect of such Interest;
"APPOINTEE" means any delegate, agent, attorney, manager or nominee
appointed by the Note Trustee pursuant to the provisions of the Security
Documents;
"ARRAN FUNDING NOTE TRUST DEED SUPPLEMENT" means, in relation to any
Series, the supplement to the Arran Funding Note Trust Deed constituting
the Notes of such Series dated on or about the relevant Issue Date
between, inter alios, the Issuer and the Note Trustee;
"ARRAN FUNDING NOTE TRUST DEED" means the deed so named dated on or
about the date hereof between the Issuer and the Note Trustee and, where
the context admits, includes the relevant Arran Funding Note Trust Deed
Supplement;
"ARRAN FUNDING SUPPLEMENT" means each supplement to the receivables
trust deed and trust cash management agreement entered into from time to
time by, inter alios, the Receivables Trustee, the Transferors, and the
Loan Note Issuer;
"AUDITORS" means in respect of the Issuer, Deloitte & Touche or such
other reputable firm of accountants qualified to practice in England and
Wales and Jersey, as may be appointed by the Issuer from time to time;
"AUTHORISED DENOMINATION" means, with respect to the Class A Notes, the
Class B Notes and the Class C Notes, the amount set forth in the
relevant Arran Funding Note Trust Deed Supplement;
"AUTHORISED SIGNATORY" means any director of the Issuer or any other
Person or Persons who are duly authorised and in respect of whom a
certificate has been provided signed by a director or another Authorised
Signatory setting out the name and signature of such Person and
confirming such Person's authority to act;
"THE BANK OF NEW YORK" means The Bank of New York whose principal office
is situated at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇;
"BASIC TERMS MODIFICATION" means any change:
(a) to change any date fixed for payment of principal or interest
in respect of the Notes, to reduce the amount of principal or
interest payable on any date in respect of the Notes or to
alter the method of calculating the amount of any payment in
respect of the Notes on redemption or maturity or the date for
any such payment;
(b) (except in accordance with the Conditions and the Arran
Funding Note Trust Deed), to effect the exchange, conversion
or substitution of the Notes for, or the conversion of such
Notes into, shares, bonds or other obligations or securities
of the Issuer or any other person or body corporate formed or
to be formed;
(c) to alter the priority of payment of interest or principal in
respect of the Notes;
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(d) to change the currency in which amounts due in respect of the
Notes are payable (other than any redenomination of the Notes
into Euro pursuant to Condition 20 (Redenomination,
Renominalisation and Reconventioning));
(e) to change the quorum required at any Meeting or the majority
required to pass an Extraordinary Resolution; or
(f) to amend the definition of Basic Terms Modification;
"BENEFIT" in respect of any Interest held, assigned, conveyed,
transferred, charged, sold or disposed of by any Person shall be
construed so as to include:
(a) all right, title, interest and benefit, present and future,
actual and contingent (and interests arising in respect
thereof) of such Person in, to, under and in respect of such
Interest and all Ancillary Rights in respect of such Interest;
(b) all monies and proceeds payable or to become payable under, in
respect of, or pursuant to such Interest or its Ancillary
Rights and the right to receive payment of such monies and
proceeds and all payments made including, in respect of any
bank account, all sums of money which may at any time be
credited to such bank account together with all interest
accruing from time to time on such money and the debts
represented by such bank account;
(c) the benefit of all covenants, undertakings, representations,
warranties and indemnities in favour of such Person contained
in or relating to such Interest or its Ancillary Rights;
(d) the benefit of all powers of and remedies for enforcing or
protecting such Person's right, title, interest and benefit
in, to, under and in respect of such Interest or its Ancillary
Rights, including the right to demand, ▇▇▇ for, recover,
receive and give receipts for proceeds of and amounts due
under or in respect of or relating to such Interest or its
Ancillary Rights; and
(e) all items expressed to be held on trust for such Person under
or comprised in any such Interest or its Ancillary Rights, all
rights to deliver notices and/or take such steps as are
required to cause payment to become due and payable in respect
of such Interest and its Ancillary Rights, all rights of
action in respect of any breach of or in connection with any
such Interest and its Ancillary Rights and all rights to
receive damages or obtain other relief in respect of such
breach;
"BREACH OF DUTY" means in relation to any Person other than the Note
Trustee, a wilful default, fraud, illegal dealing, negligence or breach
of any agreement or trust by such Person, and in relation to the Note
Trustee a breach of trust in accordance with Clause 14.6 of the Arran
Funding Note Trust Deed;
"BUSINESS DAY" means in relation to any sum payable in any currency, a
TARGET settlement day and a day on which commercial banks and foreign
exchange markets settle payments generally in London, England, Jersey,
Channel Islands, and New York, New York, the principal financial centre
of the relevant currency and in each (if any) additional business
centre;
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"BUSINESS DAY CONVENTION", in relation to any particular date has the
meaning given in the relevant Final Terms and, if so specified in the
relevant Final Terms, may have different meanings in relation to
different dates and, in this context, the following expressions shall
have the following meanings:
(i) "FOLLOWING BUSINESS DAY CONVENTION" means that the relevant
date shall be postponed to the first following day that is a
business day;
(ii) "MODIFIED FOLLOWING BUSINESS DAY CONVENTION" or "MODIFIED
BUSINESS DAY CONVENTION" means that the relevant date shall be
postponed to the first following day that is a business day
unless that day falls in the next calendar month in which case
that date will be the first preceding day that is a business
day;
(iii) "PRECEDING BUSINESS DAY CONVENTION" means that the relevant
date shall be brought forward to the first preceding day that
is a business day; and
(iv) "NO ADJUSTMENT" means that the relevant date shall not be
adjusted in accordance with any business day convention;
"CALCULATION PERIOD" means, for any Distribution Date, the period from
and including the previous Distribution Date or, in the case of the
first Distribution Date, from and including the Closing Date to, but
excluding, that Distribution Date;
"CARDHOLDER" or "CARDHOLDERS" means with respect to any credit card
account held with a Transferor, the Person or Persons obliged directly
or indirectly to make payments in respect of Receivables generated on
such credit card account;
"CCA" means the Consumer Credit ▇▇▇ ▇▇▇▇;
"CHAIRMAN" means, in relation to any Meeting, the individual who takes
the chair in accordance with Paragraph 8 (Chairman) of the Provisions
for Meetings of Noteholders as set out in Schedule 2 of the Arran
Funding Note Trust Deed;
"CHARGED ACCOUNTS" means the Issuer Distribution Account, as
specifically defined in any Arran Funding Note Trust Deed Supplement,
and any bank or other account in which the Issuer may at any time
acquire a Benefit and which is charged to the Note Trustee pursuant to
the Arran Funding Note Trust Deed and any Arran Funding Note Trust Deed
Supplement;
"CLASS" means each or any of the Class A Notes, the Class B Notes or the
Class C Notes classes of any particular Series, as the context requires;
"CLASS A GLOBAL NOTE CERTIFICATE" means each global note certificate
representing Class A Notes in each relevant currency and issued pursuant
to the provisions of the relevant Arran Funding Note Trust Deed
Supplement in, or substantially in, the form set out in Schedule 1 Part
A of the Arran Funding Note Trust Deed;
"CLASS A INDIVIDUAL NOTE CERTIFICATE" means any individual note
certificate representing a Class A Noteholder's entire holding of Class
A Notes, in or substantially in the form set out in Schedule 1 Part B of
the Arran Funding Note Trust Deed;
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"CLASS A NOTEHOLDERS" means the Persons who are for the time being the
holders of one or more of the Class A Notes (being, so long as such
Notes or any part thereof are represented by a Class A Global Note
Certificate, the Person in whose name the Class A Note is registered in
the Register of Noteholders and so long as such Notes or any part
thereof are represented by Individual Class A Note Certificates, each
Person who is for the time being shown in the Register as the holder of
a particular principal amount thereof) save that so long as such Notes
or any part thereof are represented by a Class A Global Note
Certificate, each Person who is for the time being shown in the records
of DTC (other than Euroclear or Clearstream, Luxembourg, if Euroclear or
Clearstream, Luxembourg are participants in DTC), Euroclear (other than
DTC or Clearstream, Luxembourg, if DTC or Clearstream, Luxembourg are
accountholders of Euroclear) or Clearstream, Luxembourg (other than DTC
or Euroclear, if DTC or Euroclear are accountholders of Clearstream,
Luxembourg) as the holder of a particular principal amount of Class A
Notes shall be deemed to be and shall be treated as the holder thereof
provided that such deeming and treatment shall not affect the right to
payments in respect of the Class A Global Note Certificate which shall
be vested solely in the registered holder of the Class A Global Note
Certificate in accordance with and subject to its terms and the terms of
the Arran Funding Note Trust Deed and the relevant Arran Funding Note
Trust Deed Supplement;
"CLASS A NOTES" means the notes in registered form in the currency and
denomination amount set forth in the relevant Final Terms comprising the
Class A Notes and any Sub-Class thereof of the Issuer constituted by the
relevant Arran Funding Note Trust Deed Supplement, to be represented by
an Individual Note Certificate or Individual Note Certificates, and for
the time being outstanding or, as the context may require, a specific
number of such notes and the Class A Global Note Certificate for as long
as it has not been exchanged in accordance with its terms;
"CLASS B GLOBAL NOTE CERTIFICATE" means each global note certificate
representing Class B Notes in each relevant currency and issued pursuant
to the provisions of the relevant Arran Funding Note Trust Deed
Supplement in, or substantially in, the form set out in Schedule 1 Part
A of the Arran Funding Note Trust Deed;
"CLASS B INDIVIDUAL NOTE CERTIFICATE" means any individual note
certificate representing a Class B Noteholder's entire holding of Class
B Notes, in or substantially in the form set out in Schedule I Part B of
the Arran Funding Note Trust Deed;
"CLASS B NOTEHOLDERS" means the Persons who are for the time being the
holders of one or more of the Class B Notes (being, so long as such
Notes or any part thereof are represented by a Class B Global Note
Certificate, the Person in whose name the Class B Note is registered in
the Register of Noteholders and so long as such Notes or any part
thereof are represented by Individual Class B Note Certificates, each
Person who is for the time being shown in the Register as the holder of
a particular principal amount thereof) save that so long as such Notes
or any part thereof are represented by a Class B Global Note
Certificate, each Person who is for the time being shown in the records
of DTC (other than Euroclear or Clearstream, Luxembourg, if Euroclear or
Clearstream, Luxembourg are participants in DTC), Euroclear (other than
DTC or Clearstream, Luxembourg, if DTC or Clearstream, Luxembourg are
accountholders of Euroclear) or
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Clearstream, Luxembourg (other than DTC or Euroclear, if DTC or
Euroclear are accountholders of Clearstream, Luxembourg) as the holder
of a particular principal amount of Class B Notes shall be deemed to be
and shall be treated as the holder thereof provided that such deeming
and treatment shall not affect the right to payments in respect of the
Class B Global Note Certificate which shall be vested solely in the
registered holder of the Class B Global Note Certificate in accordance
with and subject to its terms and the terms of the Arran Funding Note
Trust Deed and the relevant Arran Funding Note Trust Deed Supplement;
"CLASS B NOTES" means the notes in registered form in the currency and
denomination amount set forth in the relevant Final Terms comprising the
Class B Notes and any Sub-Class thereof of the Issuer constituted by the
relevant Arran Funding Note Trust Deed Supplement, to be represented by
an Individual Note Certificate or Individual Note Certificates, and for
the time being outstanding or, as the context may require, a specific
number of such notes and the Class B Global Note Certificate for as long
as it has not been exchanged in accordance with its terms;
"CLASS C GLOBAL NOTE CERTIFICATE" means each global note certificate
representing Class C Notes in each relevant currency and issued pursuant
to the provisions of the relevant Arran Funding Note Trust Deed
Supplement in, or substantially in, the form set out in Schedule 1 Part
A of the Arran Funding Note Trust Deed;
"CLASS C INDIVIDUAL NOTE CERTIFICATE" means any individual note
certificate representing a Class C Noteholder's entire holding of Class
C Notes, in or substantially in the form set out in Schedule I Part B of
the Arran Funding Note Trust Deed;
"CLASS C NOTEHOLDERS" means the Persons who are for the time being the
holders of one or more of the Class C Notes (being, so long as such
Notes or any part thereof are represented by a Class C Global Note
Certificate, the Person in whose name the Class C Note is registered in
the Register of Noteholders and so long as such Notes or any part
thereof are represented by Individual Class C Note Certificates, each
Person who is for the time being shown in the Register as the holder of
a particular principal amount thereof) save that so long as such Notes
or any part thereof are represented by a Class C Global Note
Certificate, each Person who is for the time being shown in the records
of DTC (other than Euroclear or Clearstream, Luxembourg, if Euroclear or
Clearstream, Luxembourg are participants in DTC), Euroclear (other than
DTC or Clearstream, Luxembourg, if DTC or Clearstream, Luxembourg are
accountholders of Euroclear) or Clearstream, Luxembourg (other than DTC
or Euroclear, if DTC or Euroclear are accountholders of Clearstream,
Luxembourg) as the holder of a particular principal amount of Class C
Notes shall be deemed to be and shall be treated as the holder thereof
provided that such deeming and treatment shall not affect the right to
payments in respect of the Class C Global Note Certificate which shall
be vested solely in the registered holder of the Class C Global Note
Certificate in accordance with and subject to its terms and the terms of
the Arran Funding Note Trust Deed and the relevant Arran Funding Note
Trust Deed Supplement;
"CLASS C NOTES" means the notes in registered form in the currency and
denomination amount set forth in the relevant Final Terms comprising the
Class C Notes and any Sub-
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Class thereof of the Issuer constituted by the relevant Arran Funding
Note Trust Deed Supplement, to be represented by an Individual Note
Certificate or Individual Note Certificates, and for the time being
outstanding or, as the context may require, a specific number of such
notes and the Class C Global Note Certificate for as long as it has not
been exchanged in accordance with its terms;
"CLEARSTREAM, LUXEMBOURG" means Clearstream Banking, societe anonyme,
Luxembourg;
"CLOSING DATE" means in respect to a Series, the date specified in the
respective Final Terms;
"COMMON DEPOSITARY" means the common depositary nominated by DTC or
Euroclear and Clearstream in relation to a Series of Notes;
"COMMON TERMS" means the provisions set out in Schedule 2 (Common Terms)
and Schedule 3 (Notice Details) of this Arran Funding Master Framework
Agreement;
"COMPANIES ACT" means the Companies Acts 1948 to 1989;
"CONDITIONS" means in relation to the Notes of any Series, the terms and
conditions to be endorsed on, or incorporated by reference in, the Notes
of such Series, in the form set out in Schedule 1 of the Arran Funding
Note Trust Deed or in such other form, having regard to the terms of the
Notes of the relevant Series, as may be agreed between the Issuer, the
Principal Paying Agent, the Note Trustee and the Relevant Dealer(s) as
modified and supplemented by the relevant Final Terms in respect of such
Series, as any of the same may from time to time be modified in
accordance with the Arran Funding Note Trust Deed and the Arran Funding
Note Trust Deed Supplement and any reference to a particular Condition
shall be construed in relation to the Notes of such Series accordingly;
"CONTRACTUAL CURRENCY" means, in relation to any payment obligations of
any Notes, the currency in which that payment obligation is expressed
and, in relation to Clause 15.1 (Remuneration) of the Arran Funding Note
Trust Deed, pounds sterling or such other currency as may be agreed
between the Issuer and the Note Trustee from time to time.
"CORPORATE SERVICES AGREEMENT" means the corporate services agreement
dated on or about the date of this Agreement between Mourant & Co
Limited and the Issuer;
"COVENANT TO PAY" means the covenants of the Issuer contained in
Clause 3.1 (Covenant to pay) of the Arran Funding Note Trust Deed;
"CREDIT CARD GUIDELINES" means each of the Transferor's usual policies,
procedures and practices relating to the operation of its credit card
business including, without limitation, the usual policies, procedures
and practices for dealing with matters relating to the obligations and
liabilities of each of the Transferor's with regards to the CCA, for
determining the creditworthiness of credit card customers, the extension
of credit to credit card customers, and relating to the maintenance of
credit card accounts and
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collection of credit card receivables, as such policies, procedures and
practices may be amended or varied from time to time;
"CREDITOR" means any Person to whom a payment is to be made under the
priority of payments as specified in each relevant Arran Funding Note
Trust Deed Supplement (prior to an Enforcement Notice) and in the
Conditions (after an Enforcement Notice);
"DAY COUNT FRACTION" means, in respect of the calculation of an amount
for any period of time for the specified currency (the "CALCULATION
PERIOD"), such day count fraction as may be specified in the Conditions
or the relevant Final Terms;
"DEALER AGREEMENT" means the agreement between, inter alios, the Issuer
and the Dealers named therein concerning the subscription of the Notes
to be issued pursuant to the Programme;
"DEALERS" means any Person appointed as a Dealer under the Dealer
Agreement and any other Person which the Issuer may appoint as a Dealer
and notice of whose appointment has been given to the Principal Paying
Agent and the Note Trustee by the Issuer in accordance with the
provisions of the Dealer Agreement but excluding any entity whose
appointment has been terminated in accordance with the terms of the
Dealer Agreement and notice of whose termination has been given to the
Principal Paying Agent and the Note Trustee by the Issuer in accordance
with the provisions of the Dealer Agreement and references to the
"RELEVANT DEALER(S)" mean, in relation to any Series of Notes, the
Dealer(s) with whom the Issuer has agreed the issue and subscription of
such Series of Notes;
"DEFERRED INTEREST" means the amount which is the interest shortfall
which occurs where the monies deposited in the relevant Distribution
Ledger in respect of a Series by the Loan Note Issuer on an Interest
Payment Date in accordance with the relevant Loan Note are insufficient
to pay the full amount of interest on any Notes of that Series on such
Interest Payment Date;
"DIRECTOR" means any director of the Issuer from time to time;
"DISPUTE" means a dispute arising out of or in connection with any
Document (including a dispute regarding the existence, validity or
termination of any Document or the consequences of its nullity);
"DISTRIBUTION DATE" means the date or dates specified as such in, or
determined in accordance with the provisions of, the relevant Final
Terms, and where the relevant Distribution Date is not a Business Day,
as the same may be adjusted in accordance with the relevant Business Day
Convention;
"DISTRIBUTION LEDGER" means a ledger or sub-ledger within the Issuer
Distribution Account, as applicable, in relation to a specific Class or
Sub-Class with respect to a specific Series of Notes, more specifically
defined in the relevant Arran Funding Note Trust Deed Supplement;
"DOCUMENTS" means this Arran Funding Master Framework Agreement, the
Agency Agreement, the Issuer Distribution Account Bank Agreement, the
Loan Notes, each
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Loan Note Supplement, each relevant Swap Agreement, Jersey Bank Account
Operating Agreement, Expenses Loan Agreement and each Security Document;
"DTC" means The Depository Trust Company of New York;
"DUE DATE" means the due date for any payment in respect of the Notes;
"EMU" means European Economic and Monetary Union;
"ENCUMBRANCE" means:
(a) a mortgage, charge, pledge, lien or other encumbrance securing
any obligation of any Person;
(b) any arrangement under which money or claims to money, or the
benefit of, a bank or other account may be applied, set off or
made subject to a combination of accounts so as to effect
discharge of any sum owed or payable to any Person; or
(c) any other type of preferential arrangement (including any
title transfer and retention arrangement) having a similar
effect;
"ENFORCEMENT NOTICE" means a notice delivered by the Note Trustee to the
Issuer in accordance with the Conditions declaring that the Notes of a
particular Series are immediately due and payable;
"EURO COMMENCEMENT DATE" means the date on which the United Kingdom
becomes a Participating Member State;
"EUROCLEAR" means Euroclear Bank S.A./N.V. as operator of the Euroclear
system;
"EVENT OF DEFAULT" means any one of the events specified in Condition 10
(Events of Default);
"EXCHANGE ACT" means the U.S. Securities and Exchange Act of 1934;
"EXPENSES LOAN" means each expenses loan made available by RBS to the
Issuer under the Expenses Loan Agreement in respect of each Series;
"EXPENSES LOAN AGREEMENT" means the agreement dated on or around the
date hereof among RBS, the Issuer and the Note Trustee whereby RBS makes
available an expenses loan to the Issuer in respect of each Series;
"EXTRAORDINARY RESOLUTION" means a resolution passed at a Meeting duly
convened and held in accordance with the Provisions for Meetings of
Noteholders by a majority of not less than 75 per cent. of the votes
cast;
"FINAL DISCHARGE DATE" means the date on which the Note Trustee is
satisfied that all the Secured Obligations and/or all other monies and
other liabilities due or owing by the Issuer have been paid or
discharged in full;
- 11 -
"FINAL REDEMPTION DATE" means in relation to each Series, the date
specified as such in, or determined in accordance with the provisions
of, the relevant Arran Funding Note Trust Deed Supplement and the
relevant Final Terms, and where the Final Redemption Date is not a
Business Day, as the same may be adjusted in accordance with the
relevant Business Day Convention;
"FINAL TERMS" means, in relation to each Series, a set of final terms
containing, inter alia, the pricing information in relation to such
Series and to be submitted to the UKLA/SEC;
"FINANCIAL STATEMENTS" means, in respect of any Person, audited
financial statements of such Person, for a specified period (including,
a balance sheet, profit and loss account (or other form of income
statement), and statement of cash-flow);
"FIRST INTEREST PAYMENT DATE" means the date specified as such in, or
determined in accordance with the provisions of, the relevant Final
Terms, and where the first Interest Payment Date is not a Business Day,
as the same may be adjusted in accordance with the relevant business day
convention;
"FITCH RATINGS" means Fitch Ratings Ltd;
"FIXED RATE NOTE" means a Note on which interest is calculated at a
fixed rate payable in arrears on a fixed date or dates in each year and
on redemption or on such other dates as may be agreed between the Issuer
and the Relevant Dealer(s) (as indicated in the Arran Funding Note Trust
Deed Supplement in respect of that Series of Notes);
"FLOATING CHARGE" means the floating charge created by Clause 4
(Creation of Security) of the Arran Funding Note Trust Deed and/or (as
appropriate) any floating charge created pursuant to a Arran Funding
Note Trust Deed Supplement;
"FLOATING RATE NOTE" means a Note on which interest is calculated at a
floating rate payable at intervals of one, two, three, six or twelve
months or at such other intervals as may be agreed between the Issuer
and the Relevant Dealer(s) (as indicated in the Arran Funding Note Trust
Deed Supplement in respect of that Series of Notes);
"FSMA" means the Financial Services and Markets ▇▇▇ ▇▇▇▇;
"GCM" means Greenwich Capital Markets, Inc, a company incorporated in
Delaware with company number acting through ▇▇-▇▇▇▇▇▇▇ its office at ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America,
as US distributor for RBS;
"GLOBAL NOTE CERTIFICATES" means the Class A Global Note Certificates,
the Class B Global Note Certificates, the Class C Global Note
Certificates, or any of them, as the context may require;
"GOVERNMENTAL AUTHORITY" shall mean any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government;
"HOLDCO" means Arran Holdings Limited (registered number 76198) whose
registered office is at ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇,
Channel Islands;
- 12 -
"INDEPENDENT CERTIFICATION" means the certifications required under
section 314(c) and (d) of the TIA;
"INDIVIDUAL NOTE CERTIFICATES" means the Class A Individual Note
Certificates, the Class B Individual Note Certificates, the Class C
Individual Note Certificates, or any of them, as the context may
require;
"INSOLVENCY ACT" means the Insolvency ▇▇▇ ▇▇▇▇;
"INSOLVENCY EVENT" in respect of a company means:
(a) such company is deemed unable to pay its debts; or
(b) such company becomes unable to pay its debts as they fall due;
or
(c) the value of the assets of such company falls to less than the
amount of its liabilities; or
(d) such company otherwise becomes insolvent; or
(e) the initiation of or consent to Insolvency Proceedings by such
company or any other Person or the presentation of a petition
for the making of an administration order (other than in the
case of the Issuer) and, in the opinion of the Note Trustee,
such proceedings are not being disputed in good faith with a
reasonable prospect of success; or
(f) the making of an administration order in relation to such
company; or
(g) an encumbrancer (excluding, in relation to the Issuer, the
Note Trustee or any Receiver) taking possession of the whole
or any substantial part of the undertaking or assets of such
company; or
(h) any distress, execution, attachment or other process being
levied or enforced or imposed upon or against the whole or (in
the opinion of the Note Trustee) any substantial part of the
undertaking or assets of such company (excluding, in relation
to the Issuer, by the Note Trustee or any Receiver) and such
order, appointment, possession or process (as the case may be)
not being discharged or otherwise ceasing to apply within 30
days; or
(i) the making of an arrangement, composition, reorganisation with
or conveyance to or assignment for the creditors of such
company generally or the making of an application to a court
of competent jurisdiction for protection from the creditors of
such company generally; or
(j) the passing by such company of an effective resolution or the
making of an order by a court of competent jurisdiction for
the winding up or dissolution of such company (except, in the
case of the Issuer, a winding up for the purpose of a merger,
reorganisation or amalgamation the terms of which have
previously been approved either in writing by the Note Trustee
or by an Extraordinary Resolution); or
- 13 -
(k) the appointment of an Insolvency Official in relation to such
company or in relation to the whole or in the opinion of the
Note Trustee any substantial part of the undertaking or assets
of such company (excluding, in relation to the Issuer, a
Receiver);
"INSOLVENCY OFFICIAL" means, in connection with any Insolvency
Proceedings, in relation to a company a liquidator, provisional
liquidator, administrator, administrative receiver, receiver or manager,
nominee, supervisor, trustee, conservator, guardian or other similar
official in respect of such company or in respect of all (or
substantially all) of the company's assets or in respect of any
arrangement or composition with creditors;
"INSOLVENCY PROCEEDINGS" means, in respect of a company, the winding-up,
dissolution or administration of such company or any equivalent or
analogous proceedings under the law of the jurisdiction in which such
company is incorporated or of any jurisdiction in which such company
carries on business including the seeking of liquidation, winding-up,
reorganisation, dissolution, administration, arrangement, adjustment,
protection or relief of debtors;
"INTEREST" means any asset, agreement, bank account, property or right;
"INTEREST AMOUNT" has the meaning ascribed to such term in the
Conditions;
"INTEREST COMMENCEMENT DATE" means, in respect of a particular Series,
the Issue Date of the Notes or such other date as may be specified as
the Interest Commencement Date in the relevant Final Terms;
"INTEREST DETERMINATION DATE" has the respective meaning ascribed
thereto in the Conditions;
"INTEREST PAYMENT DATE" means the date specified in, or determined in
accordance with the provisions of the relevant Final Terms in respect of
a Series of the Notes;
"INTEREST PERIOD" means the period commencing on and including an
Interest Payment Date or in the case of a first period for a Series, the
relevant Issue Date for such Series and ending on but excluding the next
Interest Payment Date or in the case of the first period, the first
Interest Payment Date as specified in the relevant Final Terms;
"INTEREST RATE" means the rate of interest payable in respect of a
Series of Notes as specified in the relevant Final Terms or calculated
in accordance with the provisions of the Conditions and/or relevant
Arran Funding Note Trust Deed Supplement;
"ISSUE DATE" means, in relation to any Series of Notes, the date of
issue of such Notes pursuant to the relevant Final Terms and the
relevant Arran Funding Note Trust Deed Supplement;
"ISSUER" means Arran Funding Limited (registered no. 88474), whose
registered office is situated at ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇, Channel Islands;
"ISSUER BANK ACCOUNTS" means the Issuer Distribution Account and any
other account which may be opened by the Issuer from time to time;
- 14 -
"ISSUER COVENANTS" means the covenants of the Issuer set out in
Schedule 5 (Issuer Covenants) of this Arran Funding Master Framework
Agreement;
"ISSUER DISTRIBUTION ACCOUNT" means [any/the] account opened at any time
pursuant to the Issuer Distribution Account Bank Agreement in relation
to each Series of Notes issued by the Issuer and entitled "Issuer
Distribution Account" in the name of the Issuer and maintained by the
Account Bank at its Jersey branch or any account at any branch of the
Account Bank in Jersey or Qualified Institution which replaces the same
from time to time, together with any other accounts opened by the Issuer
from time to time;
"ISSUER DISTRIBUTION ACCOUNT BANK AGREEMENT" means the agreement so
named dated on or about the date hereof between the Issuer, the Note
Trustee and the Account Bank;
"ISSUER JERSEY SECURED PROPERTY" shall mean to the extent they
constitute Jersey Assets all the Issuer's rights, title, interest and
benefit present and future in, to and under the Corporate Services
Agreement, the Loan Notes and each Loan Note Issuer Jersey Security
Interest, [each/the] Issuer Distribution Account including without
limitation all rights to receive payment of any amount which may become
payable to the Issuer thereunder or payments received by the Issuer
thereunder or rights to serve notice and/or to 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;
"ISSUER JERSEY SECURITY INTEREST" means each security interest of the
Note Trustee in accordance with the Jersey Security Interests Law (and
as secured party for the purposes of the Jersey Security Interests Law)
in any Issuer Jersey Secured Property;
"ISSUER NTD ISSUER SECURED PROPERTY" shall mean, to the extent they
constitute Jersey Assets, all the Issuer's rights, title, interest and
benefit present and future in, to and under the Corporate Services
Agreement and 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 Assigned Property;
"ISSUER PROFIT AMOUNT" in respect of a particular series, means the
amount each month equal to the annual series issuer profit amount (as
specified in the Final Terms) multiplied by the fraction, the numerator
of which is the number of days in the Calculation Period and the
denominator of which is 365;
"ISSUER'S JURISDICTION" means Jersey;
"ISSUER'S NEGATIVE COVENANTS" means the covenants set out in
Condition 6;
"JERSEY ASSETS" means in relation to the Issuer all or any of its
undertaking, property, assets, rights and revenues whatsoever, present
and future, situated in Jersey (including, without limitation, the
Issuer Jersey Secured Property);
"JERSEY BANK ACCOUNT OPERATING AGREEMENT" means the agreement so named
dated on or about the date hereof between, inter alios, the Issuer and
the Account Bank;
"JERSEY SECURITY INTERESTS LAW" means the Security Interests (Jersey)
Law 1983;
- 15 -
"LIABILITIES" means, in respect of any Person, any losses, damages,
costs, charges, awards, claims, demands, expenses, judgements, actions,
proceedings or other liabilities whatsoever including reasonable legal
fees and penalties incurred by that Person, and the expression
"LIABILITY" shall be construed accordingly;
"LOAN NOTE CONDITIONS" means, in respect of any Loan Note, the terms and
conditions of such Loan Note as specified in the relevant Loan Note
Supplement for such Loan Note;
"LOAN NOTE ENFORCEMENT NOTICE" means the notice specified in Loan Note
Condition 10.3;
"LOAN NOTE EVENT OF DEFAULT" has the meaning specified in Loan Note
Condition 10.1;
"LOAN NOTE ISSUER" means RBS Cards Securitisation Funding Limited
(registered no. 761999), whose registered office is at Royal Bank House,
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇;
"LOAN NOTE ISSUER CORPORATE SERVICES AGREEMENT" means the agreement
dated 27 March 2000, between the Loan Note Issuer and RBSI as the same
shall be amended, supplemented or novated from time to time;
"LOAN NOTE ISSUER DISTRIBUTION ACCOUNT BANK AGREEMENT" means the
agreement so named dated on or about the date hereof between, inter
alios, the Issuer and the Account Bank;
"LOAN NOTE ISSUER JERSEY SECURITY INTEREST" means each security interest
created by the Loan Note Issuer in accordance with the Jersey Security
Interests Law pursuant to the relevant Loan Note Supplement or in the
Security Trust Deed, as the case may be;
"LOAN NOTE ISSUER JERSEY SECURED PROPERTY" means, in respect of a
Series, the property of the Loan Note Issuer the subject of the relevant
Loan Note Issuer Jersey Security Interest and specified in the relevant
Loan Note Supplement or in the Security Trust Deed, as the case may be;
"LOAN NOTE" means any loan note to be issued by the Loan Note Issuer
pursuant to the Security Trust Deed;
"LOAN NOTE SUPPLEMENT" means the supplement to the Loan Note;
"LPA" means the Law of Property ▇▇▇ ▇▇▇▇;
"MANDATE" means the resolutions, instructions and signature authorities
relating to the Issuer Distribution Account in the form of the document
set out in the Schedule to the Issuer Distribution Account Bank
Agreement as it may be amended from time to time with the prior written
consent of the Note Trustee;
"MASTER DEFINITIONS SCHEDULE" means Schedule 1 of this Agreement;
"MEETING" means a meeting of Noteholders of any Series of Notes (whether
originally convened or resumed following an adjournment);
- 16 -
"MINIMUM LONG-TERM RATING" means, in respect of any Person, such
Person's long term unsecured, unsubordinated, unguaranteed debt
obligations being rated, in the case of Moody's, "Aaa", in the case of
S&P, "AAA", and Fitch Ratings, "AAA";
"MINIMUM SHORT-TERM RATING" means, in respect of any Person, such
Person's long term unsecured, unsubordinated, unguaranteed debt
obligations being rated, in the case of Moody's, "P-1", in the case of
S&P, "A-1+", and Fitch Ratings, "F-1+";
"MOODY'S" means ▇▇▇▇▇'▇ Investors Service Limited;
"MOST SENIOR CLASS" means, the Class A Notes whilst they remain
outstanding and thereafter the Class B Notes whilst they remain
outstanding and thereafter the Class C Notes. In the event that any
proposed action or inaction affects a particular Sub-Class of Notes,
this term shall mean the Sub-Class of Notes with the greatest principal
amount outstanding of the Most Senior Class of Notes;
"NATWEST" means National Westminster Bank plc, a public limited
liability company incorporated in England and Wales with company number
929027, having its registered office at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇;
"NOTE CERTIFICATE" means any Global Note Certificates or Individual Note
Certificates and includes any replacement Note Certificate issued
pursuant to Condition 13 (Replacement of Note Certificates);
"NOTE TRUSTEE" means The Bank of New York, London Branch, situated at
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ and any successor Note Trustee;
"NOTEHOLDERS" means the Class A Noteholders, the Class B Noteholders and
the Class C Noteholders;
"NOTES" means the Class A Notes, the Class B Notes and the Class C
Notes;
"NOTICE OF ASSIGNMENT TO ACCOUNT BANK" means a notice in, or
substantially in, the form set out in the relevant Schedule of each
relevant Arran Funding Note Trust Deed Supplement;
"NOTICE OF ASSIGNMENT TO TRANSACTION PARTIES" means a notice in, or
substantially in, the form set out in the relevant Schedule of each
relevant Arran Funding Note Trust Deed Supplement;
"NOTICE" means any notice delivered under or in connection with any
Document;
"NOTICES CONDITION" means Condition 16 (Notices);
"OBLIGATIONS" means all the legal obligations of the Issuer created by
or arising under the Notes and the Documents;
"OBLIGEE" shall have the meaning set forth in the Common Terms;
"OBLIGOR" shall have the meaning set forth in the Common Terms;
- 17 -
"OFFICERS' CERTIFICATE" means, with respect to any person, a certificate
signed by any director or equivalent officer of such person. Each such
certificate shall include the statements provided for in Clause 17 of
the Arran Funding Note Trust Deed if and to the extent required by the
provisions thereof;
"OFFICIAL LIST" means the official list, admission to which is regulated
by the listing rules made by the UKLA under Part VI of the Financial
Services and Markets ▇▇▇ ▇▇▇▇;
"OPINION OF COUNSEL" means an opinion in writing signed by legal counsel
who shall be acceptable to the Note Trustee and who may be counsel to
the Issuer or to an affiliate of the Issuer or to such other party as
the Note Trustee may from time to time agree. Each such opinion shall
include the statements provided for in Clause 17 of the Arran Funding
Note Trust Deed if and to the extent required by the provisions thereof.
"PARTICIPATING MEMBER STATE" means at any time any member state of the
European Union that has adopted the euro as its lawful currency in
accordance with the Treaty;
"PAYING AGENTS" means The Bank of New York and the paying agents named
in the Agency Agreement together with any Successor or additional paying
agents appointed from time to time in connection with the Notes under
the Agency Agreement;
"PAYING TRANSACTION PARTY" means any Transaction Party which is under an
obligation created by a Document to make a payment to a Receiving
Transaction Party;
"PERMITTED ACTIVITIES" means the primary activities of the Issuer to be
carried out in Jersey for the purposes of UK GAAP, which are:
(a) granting each Issuer Jersey Security Interest and, from time
to time, further security interests in respect of a Series
pursuant to the relevant Arran Funding Note Trust Deed
Supplement, in each case in accordance with the Jersey
Security Interests Law;
(b) granting, from time to time, in accordance with the Arran
Funding Note Trust Deed and pursuant to the relevant Arran
Funding Note Trust Deed Supplement, the security or additional
security in favour of the relevant Secured Creditors;
(c) in relation to each Series, if specified in the relevant Arran
Funding Note Trust Deed Supplement, entering 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; and
(d) engaging in other activities pursuant to the terms of the
Arran Funding Note Trust Deed and any relevant Arran Funding
Note Trust Deed Supplement that are necessary or incidental to
accomplish these purposes, which activities cannot be contrary
to the status of the Issuer as a qualified special purpose
entity under UK GAAP as stated in existing accounting
literature in respect thereof;
- 18 -
"PERSON" shall be construed as a reference to any Person, individual,
corporation, limited liability company, partnership, joint venture,
association, joint-stock company, trust, unincorporated organisation,
governmental entity or other entity of similar nature (whether or not
having separate legal personality);
"POTENTIAL EVENT OF DEFAULT" means any event which may become (with the
passage of time, the giving of notice, the making of any determination
or any combination thereof) an Event of Default;
"PRINCIPAL AMOUNT OUTSTANDING" means, on any day in relation to a Note,
the principal amount of that Note on the Issue Date less the aggregate
amount of all principal payments in respect of that Note which have
become due and payable (whether or not paid) by the Issuer to the
Noteholder on or prior to that day save that for the purposes of
calculating the Principal Amount Outstanding under Conditions 7, 8 and
11 and Clause 3.1.4 of the Arran Funding Note Trust Deed all such
principal payments due and unpaid on or prior to such date shall also be
taken into account as forming part of the Principal Amount Outstanding;
"PRINCIPAL PAYING AGENT" means The Bank of New York as principal paying
agent;
"PRINCIPAL TERMS" shall have the meaning defined in the Arran Funding
Note Trust Deed;
"PROCEEDINGS" means any legal proceedings relating to a Dispute;
"PROGRAMME LIMIT" means Notes up to a maximum nominal amount of
[US$7,500,000,000] which may be issued pursuant to the Programme;
"PROGRAMME" means the Arran Funding medium term note programme
established by the Issuer pursuant to which the Issuer may issue from
time to time a Series of Notes in accordance with the terms of the Arran
Funding Note Trust Deed as supplemented by the relevant Arran Funding
Note Trust Deed Supplement;
"PROSPECTUS" means the base prospectus/program offering circular
relating to the Notes prepared in connection with the Programme for
submission to the UKLA and as revised, supplemented, amended or updated
from time to time by the Issuer including, in relation to each Series,
the applicable Final Terms relating to such Series and such other
documents as are from time to time incorporated therein by reference;
"PROVISIONS FOR MEETINGS OF NOTEHOLDERS" means the provisions contained
in Schedule 3 (Provisions for the Meetings of Noteholders) of the Arran
Funding Note Trust Deed;
"QUALIFIED INSTITUTION" means a bank which (i) is rated at least the
Minimum Long-term Rating or the Minimum Short-term Rating or (ii) an
institution acceptable to each Rating Agency;
"RAPID AMORTISATION PERIOD" means, for any Series the period commencing
on the day on which a rapid amortisation trigger event is deemed to
occur for the related Loan Note pursuant to the provisions of the
relevant Loan Note Supplement, and ending on the
- 19 -
earlier of (i) the day on which the outstanding principal amount of the
related Loan Note is reduced to zero and (ii) the Final Redemption Date
of the Notes;
"RATING AGENCIES" means ▇▇▇▇▇'▇, S&P and Fitch Ratings;
"RATING" means the rating of each class of Notes given by each of the
Rating Agencies, and "RATINGS" means all of such Ratings;
"RBSI" means the Royal Bank of Scotland International Limited, a private
company incorporated with registered number 2304 with a registered
office at Royal Bank House, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇,
Channel Islands;
"RBS" means The Royal Bank of Scotland plc, a public limited liability
company incorporated in Scotland with company number SC90312, having its
registered office at ▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇;
"RECEIVABLES SECURITISATION DEED" or "RSD" means the Receivables
Securitisation Deed dated 27 March 2000, amended and restated on 28
September 2000, between The Royal Bank of Scotland plc, RBS Advanta and
the Receivables Trustee;
"RECEIVABLES TRUST DEED AND TRUST CASH MANAGEMENT AGREEMENT" or
"RTDTCMA" means the Receivables Trust Deed and Cash Management Agreement
dated 27 March 2000, amended and restated on 28 September 2000, between
South Gyle Receivables Trustee Limited, The Royal Bank of Scotland plc,
RBS Advanta, and RBS Cards Securitisation Funding Limited and all
amendments thereof and supplements thereto, including any Arran Funding
Supplement;
"RECEIVABLES TRUST" shall mean the trusts constituted pursuant to the
Receivables Trust Deed as set out in the Receivables Trust Deed and
Trust Cash Management Agreement between, inter alios, the Transferors
and the Receivables Trustee;
"RECEIVABLES TRUSTEE" means South Gyle Receivable Trustee Limited, a
private limited company incorporated in Jersey, Channel Islands with
registered office at ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇,
Channel Islands as trustee pursuant to the Receivables Trust Deed and
Servicing Agreement and its permitted successors;
"RECEIVABLES" means all amounts owing by a Cardholder to a Transferor
under a credit card account from time to time;
"RECEIVER" means any receiver, manager or administrative receiver
appointed in respect of the Issuer by the Note Trustee in accordance
with Clause 7 (Provisions Relating to Receiver) of the Arran Funding
Note Trust Deed;
"RECEIVING TRANSACTION PARTY" means, where one Transaction Party is
required by a Document to make payment to another Transaction Party, the
Transaction Party which is to receive such payment;
"RECORD DATE" means, except where otherwise specified, the record date
specified in paragraph 5 of the Provisions for Meetings of Noteholders;
- 20 -
"REDENOMINATION DATE" means an Interest Payment Date on or after the
Euro Commencement Date on which the Issuer intends to redenominate the
currency of the Notes into the euro;
"REGISTER" means the register maintained by the Registrar in accordance
with Clause 4.1 of the Agency Agreement;
"REGISTRAR" means the registrar appointed in accordance with the terms
of the Agency Agreement;
"REGULATED AMORTISATION PERIOD" means, for any Series, the period
commencing on the day on which a regulated amortisation trigger event is
deemed to occur for the related Loan Note pursuant to the provisions of
the relevant Loan Note Supplement, and ending on the earliest of (i) the
day on which the outstanding principal amount of the related Loan Note
is reduced to zero (ii) the commencement of a Rapid Amortisation Period
for the related Loan Note and (iii) the Final Redemption Date of the
Notes;
"REGULATORY DIRECTION" means, in relation to any Person, a direction or
requirement of any Governmental Authority with whose directions or
requirements such Person is accustomed to comply;
"RELEVANT DOCUMENTS" means, in relation to the Documents and in respect
of any Transaction Party, the Documents to which such Transaction Party
is a party together with the Documents that contain provisions that
otherwise bind or confer rights upon such Transaction Party;
"REPAY" includes "REDEEM" and vice versa and "REPAID", "REPAYABLE",
"REPAYMENT", "REDEEMED", "REDEEMABLE" and "REDEMPTION" shall be
construed accordingly;
"REQUIREMENT OF LAW" in respect of any Person shall mean:
(a) any law, treaty, rule, requirement or regulation;
(b) a notice by or an order of any court having jurisdiction;
(c) a mandatory requirement of any regulatory authority having
jurisdiction; or
(d) a determination of an arbitrator or Governmental Authority,
in each case applicable to or binding upon that Person or to which that
Person is subject;
"S&P" means Standard & Poor's Ratings Group, a division of The McGraw
Hill Companies, Inc.;
"SCHEDULED REDEMPTION DATE" has the meaning given in the relevant Final
Terms and the relevant Arran Funding Note Trust Deed Supplement in
respect of a Series;
"SEC" means the U.S. Securities and Exchange Commission;
"SECURED CREDITORS" means, with respect to each Series, the Note Trustee
in its own capacity and as Note Trustee on behalf of those persons
listed as entitled to payment in Condition 4 (Status, Security and
Priority of Payments) of the Notes of such Series (as
- 21 -
amended or supplemented if applicable by the Arran Funding Note Trust
Deed Supplement relating to such Series);
"SECURED OBLIGATIONS" has the meaning set forth in the Arran Funding
Note Trust Deed;
"SECURED PROPERTY" means in respect of a Series, all the property of the
Issuer which is subject to the Security in relation to such Series as
more particularly described, in respect of a Series, in the relevant
Arran Funding Note Trust Deed Supplement;
"SECURITIES ACT" means the United States Securities Act of 1933, as
amended;
"SECURITY" means, in relation to any Series, the security created or
intended to be created, or which may at any time be intended to be
created, in favour of the Note Trustee by or pursuant to the Security
Documents;
"SECURITY DOCUMENTS" means, in relation to any Series, the Arran Funding
Note Trust Deed (including the Conditions) and any deed or other
document executed in accordance with the provisions of the Arran Funding
Note Trust Deed and expressed to be supplemental to the Arran Funding
Note Trust Deed including, without limitation, the relevant Arran
Funding Note Trust Deed Supplement (including the Conditions);
"SECURITY TRUST DEED" means the security trust deed and cash management
agreement dated 27 March 2000 between, inter alios, the Security Trustee
and the Loan Note Issuer pursuant to which the Security Trustee acts as
trustee for the benefit of the secured creditors of the Loan Note
Issuer;
"SECURITY TRUST DEED JERSEY ASSIGNED PROPERTY" shall mean to the extent
they constitute Jersey Assets all the Loan Note Issuer's rights, title
and interest in and to, and the entire benefit of the Loan Note Issuer
Corporate Services Agreement including without limitation all rights to
receive payment of any amount which may become payable to the Loan Note
Issuer thereunder or payments received by the Loan Note Issuer
thereunder or rights to serve notice and/or to 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;
"SECURITY TRUSTEE" means The Bank of New York in its capacity as trustee
pursuant to the Security Trust Deed;
"SERIES" means each issue of Notes which forms a single series and with
the same terms and conditions issued in accordance with particular Final
Terms;
"SERIES CLASS A NOTE" means a Class A Note of a particular Series;
"SERIES CLASS B NOTE " means a Class B Note of a particular Series;
"SERIES CLASS C NOTE " means a Class C Note of a particular Series;
"SERIES PAY OUT EVENT" means with respect to any Series the meaning
specified in the relevant Arran Funding Note Trust Deed Supplement;
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"SERIES EXPENSES LOAN LEDGER" means, with respect to a Series, the
monies, if any, standing to the credit of the relevant Distribution
Ledger to the [relevant] Issuer Distribution Account in respect of the
relevant Expenses Loan;
"SERVICER" means The Royal Bank of Scotland plc acting through its
division retail Direct - Cards Business;
"SPECIAL CONDITIONS" means, in relation to any Series, the Conditions
applicable thereto which are not in the form set out in Schedule 1 of
the Arran Funding Note Trust Deed;
"SPECIFIED OFFICE" means, in relation to any Agent:
(a) the office specified against the name of the relevant Agent in
Schedule 1 to the Agency Agreement or
(b) such other office in the same city as such office as such
Agent may specify by notice to the Issuer, the Note Trustee
and (in the case of a Paying Agent other than the Principal
Paying Agent) the Principal Paying Agent;
"SPV CRITERIA" means the criteria established from time to time by the
Rating Agencies for a single purpose company in the Issuer's
Jurisdiction;
"STOCK EXCHANGE" means the London Stock Exchange Plc;
"Sub-CLASS" means each portion separately denominated by currency of
each of the Class A Notes, the Class B Notes or the Class C Notes
classes.
"SUBSCRIPTION AGREEMENT" means a subscription agreement in respect of a
Series of Notes substantially in the form of Schedule 3 to the Dealer
Agreement;
"SUBSTITUTED ISSUER" has the meaning set forth in the Arran Funding Note
Trust Deed;
"SUCCESSOR" means, in relation to the Paying Agents or the Calculation
Agent, such other or further Person as may from time to time be
appointed pursuant to the Agency Agreement as a Paying Agent or
Calculation Agent;
"SWAP AGREEMENTS" means the relevant currency swap agreement and the
interest swap agreement in respect of a Class or Sub-Class of Notes (if
any);
"SWAP COUNTERPARTY" means in respect of a Series of Notes the swap
counterparty or counterparties named in the relevant Final Terms (if
any);
"TAX AUTHORITY" means any government, state, municipal, local, federal
or other fiscal, revenue, customs or excise authority, body or official
anywhere in the world including H.M. Revenue and Customs;
"TAX CREDIT" means any credit against, relief or remission for, or
repayment of, any Tax;
"TAX DEDUCTION" means any deduction or withholding on account of Tax;
"TAX PAYMENT" means any payment for or on account of Tax;
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"TAX" shall be construed so as to include any present or future tax,
levy, impost, duty, charge, fee, deduction or withholding of any nature
whatsoever (including any penalty or interest payable in connection with
any failure to pay or any delay in paying any of the same) imposed or
levied by or on behalf of any Tax Authority in the Issuer's Jurisdiction
and/or the jurisdiction in which the Issuer, any Paying Agent or the
Principal Paying Agent is incorporated or any jurisdiction in which such
agent makes payments under the Notes. "TAXES", "TAXATION", "TAXABLE" and
comparable expressions shall be construed accordingly;
"TIA" means the United States Trust Indenture Act of 1939, as amended;
"TRANSACTION PARTY" means any Person who is a party to a Document;
"TRANSFER AGENT" means the Bank of New York and any transfer agent
appointed in relation to the Individual Note Certificates.
"TRANSFEROR BENEFICIARY" means RBS or Natwest as relevant as the holder
of the relevant Transferor Interest;
"TRANSFEROR INTEREST" means the aggregate principal amount of the
interest of the relevant Transferor Beneficiary under the receivables
trust.
"TRANSFEROR" means as relevant RBS or NatWest and "TRANSFERORS" mean
both of RBS and Natwest;
"TREATY" means the Treaty establishing the European Communities, as
amended by the Treaty on European Union;
"TRUST CORPORATION" means a corporation entitled by the rules made under
the Public Trustee ▇▇▇ ▇▇▇▇ to act as a trustee or entitled pursuant to
any other legislation applicable to a trustee in any jurisdiction other
than England and Wales to act as Note Trustee and carry on trust
business under the laws of the country of its incorporation;
"TRUST PROCEEDS" means all monies received or recovered by the Note
Trustee after an Enforcement Notice has been served by the Note Trustee
other than monies received pursuant to and in accordance with the
priority of application of amounts prior to and following enforcement as
provided in Clause 12.1 of the Arran Funding Note Trust Deed and the
relevant Arran Funding Note Trust Deed Supplement;
"TRUST PROPERTY" means the Covenant to Pay, the Issuer Covenants, the
Security and all proceeds of the Security;
"TRUSTEE ACTS" means both the Trustee ▇▇▇ ▇▇▇▇ and the Trustee ▇▇▇ ▇▇▇▇
of England and Wales;
"UK GAAP" means the generally accepted accounting principals from time
to time of England and Wales;
"UKLA" means the UK Listing Authority in its capacity as competent
authority for the purposes of Part VI of the Financial Services and
Markets ▇▇▇ ▇▇▇▇;
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"UNDERLYING ASSETS" means, in relation to any Series, the assets
(including all rights, title and interest relating thereto) mortgaged,
charged or pledged by the Issuer in favour of the Note Trustee by or
pursuant to the Arran Funding Note Trust Deed Supplement constituting
such Series and, in general, all property for the time being mortgaged,
charged or pledged in favour of the Note Trustee by or pursuant to the
Security Documents;
"VAT" means, and shall be construed as a reference to, value added tax
as imposed by VATA and related legislation including any tax of a
similar fiscal nature, whether imposed in the United Kingdom (instead of
or in addition to VAT) or elsewhere from time to time;
"VATA" means the Value Added Tax ▇▇▇ ▇▇▇▇;
"WRITTEN RESOLUTION" means, in relation to any Series, a resolution in
writing signed by or on behalf of all holders of Notes of such Series
who for the time being are entitled to receive notice of a Meeting in
accordance with the provisions of the Arran Funding Note Trust Deed and
the Arran Funding Note Trust Deed Supplement whether contained in one
document or several documents in like form, each signed by or on behalf
of one or more such Noteholders;
"24 HOURS" means a period of 24 hours including all or part of a day
upon which banks are open for business in both the place where any
Meeting is to be held and in each of the places where the Paying Agents
have their Specified Offices (disregarding for this purpose the day upon
which such Meeting is to be held) and such period shall be extended by
one period or, to the extent necessary, more periods of 24 hours until
there is included, as stated above, 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.
2. PRINCIPLES OF INTERPRETATION AND CONSTRUCTION
2.1 KNOWLEDGE
2.1.1 References in any Document to the expressions "so far as the
Issuer is aware" or "to the best of the knowledge, information
and belief of the Issuer" or any similar expression in respect
of any matter shall be deemed to mean the actual knowledge of
senior officers of the Issuer located at its principal place
of business, together with the knowledge which such persons
could have had, had the Issuer actually carried out the
procedures regularly used by it in the day to day operation of
its business.
2.1.2 References in any Document to the expressions "so far as the
Note Trustee is aware" or "to the best of the knowledge,
information and belief of the Note Trustee" or any similar
expression in respect of any matter shall be deemed to refer
to the actual knowledge of members of the relevant department
with responsibility for administering the transactions
contemplated in the Documents of the Note Trustee.
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2.2 INTERPRETATION
Any reference in the Documents to:
a document being in an "AGREED FORM" means that the form of the document
in question has been agreed between the proposed parties thereto and
that a copy thereof has been signed for the purposes of identification
by ▇▇▇▇▇▇▇▇ Chance Limited Liability Partnership;
"CONTINUING", in respect of an Event of Default, shall be construed as a
reference to an Event of Default which has not been waived in accordance
with the terms of the Conditions or, as the case may be, the relevant
Document and, in respect of a Potential Event of Default, one which has
not been remedied within the relevant grace period or waived in
accordance with the terms of the Conditions or, as the case may be, the
relevant Document;
"EUROCLEAR" and/or "CLEARSTREAM, LUXEMBOURG" shall, wherever the context
so admits, be deemed to include reference to any additional or
alternative clearing system approved by the Issuer and the Note Trustee
in relation to the Notes;
"HOLDER" means the registered owner of a Note and the words "holders"
and related expressions shall (where appropriate) be construed
accordingly;
"INCLUDING" shall be construed as a reference to "INCLUDING WITHOUT
LIMITATION", so that any list of items or matters appearing after the
word "including" shall be deemed not to be an exhaustive list, but shall
be deemed rather to be a representative list, of those items or matters
forming a part of the category described prior to the word "including";
"INDEBTEDNESS" shall be construed so as to mean any indebtedness for
money borrowed or raised including (without limitation) any indebtedness
for or in respect of:
(a) amounts raised by acceptance under any acceptance credit
facility;
(b) amounts raised under any note purchase facility;
(c) the amount of any liability in respect of leases or hire
purchase contracts which would in accordance with applicable
law and the relevant generally accepted accounting principles,
be treated as finance or capital leases;
(d) the amount of any liability in respect of any purchase price
for assets or services the payment of which is deferred for a
period in excess of 60 days; and
(e) amounts raised under any other transaction (including, without
limitation, any forward sale or purchase agreement) having the
commercial effect of a borrowing;
a "LAW" shall be construed as any law (including common or customary
law), statute, constitution, decree, judgement, treaty, regulation,
directive, bye-law, order or any other legislative measure of any
government, supranational, local government, statutory or regulatory
body or court;
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a "MONTH" is a reference to a period starting on one day in a calendar
month and ending on the numerically corresponding day in the next
succeeding calendar month except that:
(a) if any such numerically corresponding day is not a Business
Day, such period shall end on the immediately succeeding
Business Day to occur in that next succeeding calendar month
or, if none, it shall end on the immediately preceding
Business Day; and
(b) if there is no numerically corresponding day in that next
succeeding calendar month, that period shall end on the last
Business Day in that next succeeding calendar month,
and references to "MONTHS" shall be construed accordingly;
"OUTSTANDING" means, in relation to the Notes, all the Notes other than:
(a) those which have been redeemed in full in accordance with the
Conditions;
(b) those in respect of which the date for redemption, in
accordance with the provisions of the Conditions, has occurred
and for which the redemption monies (including all interest
accrued thereon to such date for redemption) have been duly
paid to the Note Trustee or the Principal Paying Agent in the
manner provided for in the Agency Agreement (and, where
appropriate, notice to that effect has been given to the
Noteholders in accordance with the Notices Condition) and
remain available for payment in accordance with the
Conditions;
(c) those which have been redeemed and surrendered for
cancellation as provided in Condition 7 (Redemption and
Purchase) and notice of the cancellation of which has been
given to the Note Trustee;
(d) those which have become void under the Conditions;
(e) those mutilated or defaced Notes which have been surrendered
or cancelled and in respect of which replacement Note
Certificates have been issued pursuant to Condition 13
(Replacement of Note Certificates); and
(f) those Notes which are alleged to have been lost, stolen or
destroyed and in respect of which replacement Note
Certificates have been issued pursuant to Condition 13
(Replacement of Note Certificates);
provided that for each of the following purposes, namely:
(i) the right to attend and vote at any Meeting of Noteholders;
(ii) the determination of how many and which Notes are for the time
being outstanding for the purposes of Clause 10.1 (Waiver),
Clause 10.2 (Modification), Clause 11.3 (Legal Proceedings),
Clause 15.2 (Exchange Rate Indemnity) and Clause 16.1
(Appointment of Note Trustees) of the Arran Funding Note Trust
Deed and Condition 10 (Events of Default) Condition 14
(Meetings of Noteholders; Modification and Waiver) and
Condition 15 (Enforcement) and the Provisions for Meetings of
Noteholders; and
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(iii) any discretion, power or authority, whether contained in the
Arran Funding Note Trust Deed or provided by law, which the
Note Trustee is required to exercise in or by reference to the
interests of the Noteholders or any of them,
those Notes (if any) which are for the time being held by the Issuer or
for the benefit of the Issuer shall (unless and until ceasing to be so
held) be deemed not to remain outstanding;
a "PERSON" shall be construed as a reference to any Person, firm,
company, corporation, government, state or agency of a state or any
association or partnership (whether or not having separate legal
Personality) of two or more of the foregoing;
"PRINCIPAL" shall, where applicable, include premium;
"REPAY", "REDEEM" and "PAY" shall each include both of the others and
"REPAID", "REPAYABLE" and "REPAYMENT", "REDEEMED", "REDEEMABLE" and
"REDEMPTION" and "PAID", "PAYABLE" and "PAYMENT" shall be construed
accordingly;
all references in this Agreement or in any Document placing an
obligation upon the Note Trustee of "REASONABLENESS" or to be
"REASONABLE" shall where such obligation is held by the Note Trustee be
construed so that such obligation shall be determined solely by
reference to the interests of the holders of the Most Senior Class of
Notes outstanding as a class;
a reference to any "TRANSACTION PARTY" in this Agreement or in any
Document or in the Conditions shall be construed so as to include its
and any subsequent successors and transferees in accordance with their
respective interests;
a "SUBSIDIARY" or "HOLDING COMPANY" is to be construed in accordance
with section 736 of the Companies Act and a "SUBSIDIARY UNDERTAKING" or
"PARENT UNDERTAKING" is to be construed in accordance with section 258
of the Companies Act;
a "SUCCESSOR" of any party shall be construed so as to include an
assignee or successor in title of such party and any Person who under
the laws of the jurisdiction of incorporation or domicile of such party
has assumed the rights and obligations of such party under the relevant
Document or to which, under such laws, such rights and obligations have
been transferred; and
a "WHOLLY-OWNED SUBSIDIARY" of a company or corporation shall be
construed as a reference to any company or corporation which has no
other members except that other company or corporation and that other
company's or corporation's wholly-owned subsidiaries or Persons acting
on behalf of that other company or corporation or its wholly-owned
subsidiaries.
2.3 CURRENCY SYMBOLS
"[POUND]", "POUNDS STERLING" and "STERLING" denote the lawful currency
of the United Kingdom and "[EURO]", "EUR" or "EURO" are the single
currency introduced at the start of the third stage of EMU pursuant to
the Treaty, "US$", "US DOLLARS" and "DOLLARS" denote the lawful currency
of the United States of America.
- 28 -
2.4 DOCUMENTS AND OTHER AGREEMENTS
Any reference to the Arran Funding Master Framework Agreement, any
Document or any other agreement or document shall be construed as a
reference to this Arran Funding Master Framework Agreement, such
Document or, as the case may be, such other agreement or document as the
same may have been, or may from time to time be, amended, varied,
novated, supplemented or replaced.
2.5 STATUTES AND TREATIES
Any reference to a statute or treaty shall be construed as a reference
to such statute or treaty as the same may have been, or may from time to
time be, amended or, in the case of a statute, re-enacted.
2.6 HEADINGS
Section, Part, Schedule, Paragraph and Clause headings are for ease of
reference only.
2.7 TIME
Any reference in any Document to a time of day shall, unless a contrary
indication appears, be a reference to London time.
2.8 SCHEDULES
Any Schedule of, or Appendix to a Document forms part of such Document
and shall have the same force and effect as if the provisions of such
Schedule or Appendix were set out in the body of such Document. Any
reference to a Document shall include any such Schedule or Appendix.
2.9 SECTIONS
Except as otherwise specified in a Document, reference in a Document to:
2.9.1 "Section" shall be construed as a reference to a Section of
such Document;
2.9.2 "Part" shall be construed as a reference to a Part of such
Document;
2.9.3 "Schedule" shall be construed as a reference to a Schedule of
such Document; and
2.9.4 "Clause" shall be construed as a reference to a Clause of a
Part of such Document; and
2.9.5 "Paragraph" shall be construed as a reference to a Paragraph
of a Schedule of such Document.
2.10 NUMBER
In any Document, save where the context otherwise requires, words
importing the singular number include the plural and vice versa.
2.11 TIME OF THE ESSENCE
Any date or period specified in any Document may be postponed or
extended by mutual agreement between the parties, but as regards any
date or period originally fixed or so postponed or extended, time shall
be of the essence.
2.12 ADDITIONAL AMOUNTS
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Principal and/or interest in respect of the Notes of any Series shall be
deemed also to include references to any redemption amounts which may be
payable under Condition 8 (Payments) and any premium;
2.13 RELEVANT CURRENCY
"relevant currency" shall be construed as a reference to the currency in
which payments in respect of the Notes of the relevant Series are to be
made as indicated in the applicable Final Terms;
2.14 ENFORCEMENT OF RIGHTS
An action, remedy or method of judicial proceedings for the enforcement
of rights of creditors shall include, in respect of any jurisdiction
other than England, references to such action, remedy or method of
judicial proceedings for the enforcement of rights of creditors
available or appropriate in such jurisdictions as shall most nearly
approximate thereto;
2.15 TRUST CORPORATION
A trust corporation denotes a corporation entitled by rules made under
the Public Trustee Act 1906 to act as a custodian trustee or entitled
pursuant to any other legislation applicable to a trustee in any
jurisdiction other than England to act as trustee and carry on trust
business under the laws of the country of its incorporation; and
2.16 THE CONDITIONS
In the Arran Funding Note Trust Deed, unless the context requires or the
same are otherwise defined, words and expressions defined in the
Conditions and not otherwise defined therein shall have the same meaning
in the Arran Funding Note Trust Deed.
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SCHEDULE 2
COMMON TERMS
PART 1 - GENERAL LEGAL TERMS
1. FURTHER ASSURANCE
Each Transaction Party referred to as an "Obligor" in any Document for
the purposes of this Paragraph shall (at such Transaction Party's cost)
do and execute, or arrange for the doing and executing of, each
necessary act, document and thing reasonably within its power and as may
be reasonably requested of it by the Transaction Party referred to as an
"Obligee" in such Document for the purposes of this paragraph in order
to implement and/or give effect to such Document and the Transactions.
2. ENTIRE AGREEMENT
2.1 ENTIRE AGREEMENT
The Documents and any document referred to in the Documents constitute
the entire agreement and understanding between the Transaction Parties
relating to the Transactions.
2.2 NO RELIANCE
Each Transaction Party agrees that:
2.2.1 it has not entered into any of the Documents in reliance upon
any representation, warranty or undertaking of any other
Transaction Party which is not expressly set out or referred
to in one of the Documents;
2.2.2 except in respect of an express representation or warranty
under any of the Documents, it shall not have any claim or
remedy (whether in equity, contract or tort, under the
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ or in any other way) in respect of
any misrepresentation or breach of warranty by any other
Transaction Party or in respect of any untrue statement by any
other Transaction Party, regardless of whether such
misrepresentation, breach or untrue statement was made,
occurred or was given prior to the execution of any of the
Documents.
2.3 BREACH OF DUTY
Nothing in this Paragraph shall have the effect of limiting or
restricting any liability of a Transaction Party arising as a result of
any Breach of Duty.
3. APPLICATION OF COMMON TERMS
3.1 SEPARATE PARTIES
Where any Transaction Party acts in more than one capacity, the
provisions of the Common Terms shall apply to such Person as though it
were a separate party in each such capacity.
3.2 INCONSISTENCY
If a term or provision of any Document (not including a term or
provision relating to VAT) is inconsistent with any provision of the
Common Terms or any term defined in
- 31 -
the Master Definitions Schedule, the term or provision of such Document
shall prevail. If a term or provision of any Document relating to VAT is
inconsistent with a provision of the Common Terms, the provision of the
Common Terms shall prevail.
4. NOTE TRUSTEE PARTY TO DOCUMENTS
4.1 BETTER PRESERVATION AND ENFORCEMENT OF RIGHTS
Except where any Document provides otherwise, the Note Trustee has
agreed to become a party to the Documents to which it is a party for the
better preservation and enforcement of its rights under such Documents
and the Security Documents and shall not assume any liabilities or
obligations under any Document unless such obligation or liability is
expressly assumed by the Note Trustee in such Document.
4.2 NOTE TRUSTEE HAS NO RESPONSIBILITY
The Note Trustee shall not have any responsibility for any of the
obligations of the other Transaction Parties and the other Transaction
Parties acknowledge that the Note Trustee has no such responsibility.
5. CHANGE OF NOTE TRUSTEE
If there is any change in the identity of the Note Trustee in accordance
with the terms of the Arran Funding Note Trust Deed, each of the
Transaction Parties shall execute such documents and take such action as
the new Note Trustee and the outgoing Note Trustee may reasonably
require for the purposes of vesting in the new Note Trustee the benefit
of the Documents and the rights, powers and obligations of the Note
Trustee under the Documents, and releasing the outgoing Note Trustee
from its future obligations under the Documents.
6. SERVICES NON-EXCLUSIVE
6.1 NON-EXCLUSIVITY
Subject to the provisions of the Documents, nothing in the Documents
shall prevent any Transaction Party from rendering services similar to
those provided for in the Documents to other Persons, firms or companies
or from carrying on any business similar to or in competition with the
business of any of the Transaction Parties.
6.2 EXISTING BUSINESSES
Nothing in the Documents shall prevent any Transaction Party from
carrying on its own business in the manner which it thinks fit, unless,
by so doing, it would render itself unable to perform its obligations
under the Documents in the manner contemplated in the Documents.
7. RESTRICTION ON ENFORCEMENT OF SECURITY AND NON-PETITION
7.1 NO PROCEEDINGS AGAINST THE ISSUER
Each Transaction Party (other than the Issuer) agrees with the Issuer
that except as required by the TIA in respect of the Noteholders:
7.1.1 no Transaction Party (other than the Note Trustee) nor any
Person acting on behalf of such Transaction Party shall have
any right to enforce the Security or
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to take any proceedings against the Issuer to enforce the
Security or to direct the Note Trustee to do so other than as
permitted by the Relevant Documents;
7.1.2 no Transaction Party (other than the Note Trustee) shall have
the right to take or join any Person in taking any steps
against the Issuer for the purpose of obtaining payment of any
amount due from the Issuer to such Transaction Party;
7.1.3 until the date falling one year and one day after the date on
which the Issuer has discharged all of its obligations in
relation to the Notes, neither it nor any party on its behalf
(other than the Note Trustee) shall initiate or join any
Person in initiating an Insolvency Event in relation to the
Issuer; and
7.1.4 it shall not be entitled to take any steps or proceedings
which would result in the priority of payments as specified in
each relevant Arran Funding Note Trust Deed Supplement (prior
to any Enforcement Notice) and in the Conditions (after any
Enforcement Notice) not being observed.
7.2 PERMITTED STEPS
This Paragraph shall not prevent any Secured Creditor from taking any
steps against the Issuer pursuant to the Documents (other than the
Security Documents) so long as such steps do not amount to the
initiation or the threat of initiation of an Insolvency Event in respect
of the Issuer or the initiation or threat of initiation of legal
proceedings for the purpose of obtaining payment of any amount due to
such Transaction Party from the Issuer.
8. LIMITED RECOURSE AND NON PETITION
8.1 The Note Trustee, any Noteholders and the Secured Creditors of any
Series shall have recourse only to the Secured Property in respect of
such Series and, once such Secured Property has been realised shall not
be entitled to take any further steps against the Issuer to recover any
sum still unpaid, and all claims and all rights to claim against the
Issuer in respect of each such sum shall be extinguished. In particular,
no Noteholder, no Secured Creditor nor the Note Trustee on their behalf
may in respect of any Series (at any time, whether prior to or after the
realisation of the Secured Property):
8.1.1 institute against, or join any Person in instituting against
the Issuer any bankruptcy, winding up, re-organisation,
arrangement, administration, insolvency, liquidation
proceeding or other proceeding under any similar law (but, for
the avoidance of doubt, without prejudice to its ability to
appoint a Receiver pursuant to the terms of the Arran Funding
Note Trust Deed as supplemented by the relevant Arran Funding
Note Trust Deed Supplement in relation to such Series) nor
shall any of them have any claim in priority in respect of any
such sums over or in respect of any assets of the Issuer which
comprise Secured Property secured only for any other Series;
or
8.1.2 have any recourse, in respect of any obligation, covenant or
agreement of the Issuer, against any shareholder, officer,
agent, or director of the Issuer.
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9. PROVISIONS RELATING TO THE SECURITY DOCUMENTS
9.1 ACKNOWLEDGEMENTS BY SECURED CREDITORS
Each Secured Creditor:
9.1.1 acknowledges the Security created by the Security Documents;
9.1.2 undertakes to the Note Trustee not to do anything inconsistent
with the Security or the terms of the Security Documents;
9.1.3 agrees to observe the provisions of the Security Documents;
9.1.4 acknowledges that the Security is held by the Note Trustee for
the benefit of all the Secured Creditors and that any Receiver
shall be appointed by the Note Trustee for the benefit of all
the Secured Creditors; and
9.1.5 acknowledges the existence of the rights conferred on the
Noteholders by Condition 10 (relating to the delivery of an
Enforcement Notice) and Condition 15 (relating to
Proceedings).
9.2 SECURED CREDITORS AND DOCUMENTS
Each Secured Creditor shall be bound by, and deemed to have notice of,
all of the provisions of the Documents as if they were parties to each
Document.
9.3 RESTRICTIONS ON EXERCISE OF SECURITY RIGHTS
If the Note Trustee, having become bound to do so, fails:
9.3.1 to deliver an Enforcement Notice; and/or
9.3.2 to take any steps or proceedings to enforce the Security in
accordance with Clause 11 (Enforcement) of the Arran Funding
Note Trust Deed,
within a reasonable time and such failure is continuing, any Noteholder
shall be entitled to take any such steps and proceedings as it shall
deem necessary or desirable and not involving any breach of Clause 7.1
(No proceedings against the Issuer) including steps for the appointment
of a successor Note Trustee.
9.4 RECEIPT
The Note Trustee is hereby authorised to execute on behalf of the
Secured Creditors a receipt in respect of all or part only of the
Secured Obligations, as may be appropriate from time to time.
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9.5 RECOVERIES AFTER ENFORCEMENT
Except for moneys paid out by the Note Trustee pursuant to and in
accordance with Clause 12.1 of the Arran Funding Note Trust Deed and
Condition 4(c) (Application of Proceeds Upon Enforcement), all monies
received or recovered by the Secured Creditors and Noteholders in
respect of the Secured Obligations after delivery of an Enforcement
Notice (whether by way of set-off, retention, compensation, balancing of
accounts or otherwise) shall forthwith be paid to (and pending such
payment held on trust for) the Note Trustee.
10. OBLIGATIONS AS CORPORATE OBLIGATIONS
10.1 NO RECOURSE AGAINST SHAREHOLDERS AND OTHERS
No Transaction Party shall have any recourse against any director,
shareholder, officer, agent, employee or director of a Transaction Party
in his capacity as such, by any Proceedings or otherwise, in respect of
any obligation, covenant, or agreement of a Transaction Party (acting in
any capacity whatsoever) contained in any of the Documents.
10.2 CORPORATE OBLIGATIONS
It is expressly agreed and understood that each Document is a corporate
obligation of each Transaction Party.
10.3 NO PERSONAL LIABILITY
No personal liability shall attach to or be incurred by any shareholder,
officer, agent, employee or director of a Transaction Party in his
capacity as such, under or by reason of any of the obligations,
covenants or agreements of such Transaction Party contained in the
Documents or implied from the Documents except where such liability
arises by reason of the fraud or wilful misconduct by such shareholder,
officer, agent employee or director and any and all such personal
liability of every such shareholder, officer, agent, employee or
director for breaches by such Transaction Party of any such obligations,
covenants or agreements, either at law or by statute or constitution, is
hereby expressly waived by the other Transaction Parties as a condition
of and consideration for the execution of the Documents.
10.4 NO LIABILITY FOR OBLIGATIONS OF THE ISSUER
The Transaction Parties, other than the Issuer, shall not have any
liability for the Obligations of the Issuer and nothing in the Documents
shall constitute the giving of a guarantee, an indemnity or the
assumption of a similar obligation by any of such other Transaction
Parties in respect of the performance by the Issuer of the Obligations.
11. VARIATION OF DOCUMENTS
Subject to Clause 10.2 (Modifications) of the Arran Funding Note Trust
Deed and Condition 14 (Meetings of Noteholders; Modification and Waiver)
variation of any Document is valid only if it is in writing and signed
by or on behalf of each Transaction Party which is a party to such
Document and notification is made to the Rating Agencies of such
variation.
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12. EXERCISE OF RIGHTS AND REMEDIES
12.1 NO WAIVER
A failure to exercise or delay in exercising a right or remedy provided
by any Document or by law does not constitute a waiver of the right or
remedy or a waiver of other rights or remedies. No single or partial
exercise of a right or remedy provided by any Document or by law
prevents further exercise of the right or remedy or the exercise of
another right or remedy.
12.2 RIGHTS AND REMEDIES CUMULATIVE
Except where any Document specifically provides otherwise, the rights
and remedies contained in a Document are cumulative and not exclusive of
rights or remedies provided by law.
13. PARTIAL INVALIDITY
The invalidity, illegality or unenforceability of a provision of a
Document does not affect or impair the continuation in force of the
remainder of such Document.
14. NO PARTNERSHIP
Except where any Document specifically provides otherwise, no provision
of any Document creates a partnership between any of the Transaction
Parties or makes a Transaction Party the agent of another Transaction
Party for any purpose. Except where any Document provides otherwise, a
Transaction Party has no authority or power to bind, to contract in the
name of, or to create a liability for another Transaction Party in any
way or for any purpose.
15. CONTINUATION OF OBLIGATIONS
Except to the extent that they have been performed and except where any
Document specifically provides otherwise, the warranties,
representations, indemnities, and obligations contained in any Document
remain in force after the date on which they were expressed to take
effect until the Final Discharge Date.
16. ASSIGNMENT AND SUBCONTRACTING
16.1 SUCCESSORS
Each Document shall be binding upon and enure to the benefit of each
Transaction Party which is a party to such Document or is otherwise
bound by its terms and its or any subsequent successors and assigns.
16.2 ASSIGNMENT
Except where any Document provides otherwise or with the prior written
consent of the Note Trustee, a Transaction Party may not assign or
transfer or purport to assign or transfer a right or obligation under
any Document to which it is a party.
16.3 BENEFIT
Each Transaction Party (other than the Note Trustee) is entering into
each Document to which it is a party for its benefit and not for the
benefit of another Person.
16.4 DELEGATION
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Except where any Document specifically provides otherwise, a Transaction
Party may not subcontract or delegate the performance of any of its
obligations under a Document.
17. THIRD PARTY TRANSACTION RIGHTS
Without prejudice to the rights of the Persons mentioned in Clauses
8.1.2, 10.1 (No Recourse Against Shareholders and Others), 10.3 (No
Personal Liability) and 22 (Value Added Tax) herein and clauses 2.3.3
and 2.6 (Related Agreements) of the Arran Funding Note Trust Deed, a
Person who is not a party to any Document has no right under the
Contract (Rights of Third Parties) ▇▇▇ ▇▇▇▇ to enforce any term of any
Document but this does not affect any right or remedy of a third party
which exists or is available apart from that Act.
18. CONFIDENTIALITY
18.1 CONFIDENTIALITY OF INFORMATION
Each Transaction Party agrees that prior to the Final Discharge Date and
thereafter it shall keep confidential and it shall not disclose to any
Person whatsoever, any information relating to the business, finances or
other matters of a confidential nature of any of the Transferors, the
Loan Note Issuer or the Issuer (as the case may be) which it may have
obtained as a result of the execution of any Document or of which it may
otherwise have become possessed including any information concerning the
identity of any Cardholder.
18.2 DISAPPLICATION OF CONFIDENTIALITY PROVISIONS
The Transaction Parties shall use all reasonable endeavours to prevent
any disclosure referred to in Clause 18.1 (Confidentiality of
Information) provided however that the provisions of Clause 18.1
(Confidentiality of Information) shall not apply:
18.2.1 to the disclosure of any information to any Person who is a
Transaction Party insofar as such disclosure is expressly
permitted by the relevant Document;
18.2.2 to the disclosure of any information already known to the
recipient otherwise than as a result of entering into any of
the Documents;
18.2.3 to the disclosure of any information with the consent of the
relevant Transaction Parties;
18.2.4 to the disclosure of any information which is or becomes
public knowledge otherwise than as a result of the conduct of
the recipient;
18.2.5 to the disclosure of any information:
(a) in order to obtain the admission of the Notes to the
Official List; or
(b) in connection with the admission of the Notes to trading
on the Stock Exchange; or
(c) in relation to the registration of the program and the
notes under the Securities Act or the discharge of
reporting obligations under the Exchange Act;
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(d) which is necessary or desirable to provide to
prospective investors in the Notes;
18.2.6 to the disclosure of any information with respect to the tax
treatment or tax structure of the transactions contemplated
herein, provided that any disclosure shall encompass solely
matters relevant to:
(a) United States federal income taxation to the extent
applicable; or
(b) the tax laws of any state or local jurisdiction within
the United States to the extent applicable;
18.2.7 to the extent that the recipient is required to disclose the
same pursuant to any Requirement of Law or any Regulatory
Direction;
18.2.8 to the extent that the recipient needs to disclose the same
for the exercise, protection or enforcement of any of its
rights under any of the Documents or, in the case of the Note
Trustee, for the purpose of discharging, in such manner as it
thinks fit, its duties or obligations under or in connection
with the Documents in each case to such Persons as require to
be informed of such information for such purposes;
18.2.9 to the extent that the recipient needs to disclose the same to
any of its employees provided that before any such disclosure
each Transaction Party shall make the relevant employees aware
of its obligations of confidentiality under the relevant
Document and shall at all times procure compliance with such
obligations by such employees;
18.2.10 to the disclosure of any information to professional advisers
including auditors who receive the same under a duty of
confidentiality;
18.2.11 to the disclosure of any information which any Rating Agency
may require to be disclosed to it or its professional
advisers; or
18.2.12 to the disclosure of any information which RBS and GCM in
their capacity as co-dealers of the transactions and each
other Dealer in the relevant transactions may require to be
disclosed to it or its professional advisers.
19. NOTICES
19.1 COMMUNICATIONS IN WRITING
Except as specified in any Document, any Notice:
19.1.1 shall be in writing; and
19.1.2 shall be delivered personally or sent by first class pre-paid
recorded delivery (and first class air mail if overseas) or by
fax (provided that such Notice shall forthwith be confirmed by
post) to the party due to receive the Notice at its address or
fax number and marked for the attention of the Person or
Persons set out in the Notices Details or to another address
or fax number or marked for the attention of another Person or
Persons specified by the receiving party by not
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less than seven days written notice to the other Transaction
Parties received before the Notice was despatched.
19.2 TIME OF RECEIPT
Unless there is evidence that it was received earlier, a Notice marked
for the attention of the Person specified in accordance with Clause 19.1
(Communications in Writing) is deemed given:
19.2.1 if delivered personally, when left at the relevant address
referred to in the Notices Details;
19.2.2 if sent by post, except air mail, three days after posting it;
19.2.3 if sent by air mail, seven days after posting it; and
19.2.4 if sent by fax, 24 hours after completion of its
transmission/when confirmation of its transmission has been
recorded by the sender's fax machine.
20. COUNTERPARTS
Each Document may be executed in any number of counterparts each of
which shall be deemed an original, but all of which taken together shall
constitute one and the same instrument.
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PART 2
PAYMENT PROVISIONS
21. CALCULATIONS AND PAYMENTS
21.1 BASIS OF ACCRUAL
Except as otherwise provided in any Document, any interest, commitment
commission or fees due from one Transaction Party to another under any
Document shall accrue from day to day and shall be calculated on the
basis of a year of the number of days equal to the Day Count Fraction
(or, in any case where market practice differs, in accordance with
market practice).
21.2 CURRENCY INDEMNITY
If any sum (a "SUM") due from a Paying Transaction Party to a Receiving
Transaction Party under any Document or any order, judgement, award or
decision given or made in relation thereto has to be converted from the
currency (the "FIRST CURRENCY") in which such Sum is payable into
another currency (the "SECOND CURRENCY") for the purpose of:
21.3.1 making or filing a claim or proof against the Paying
Transaction Party; or
21.3.2 obtaining or enforcing an order, judgement, award or decision
in any court or other tribunal,
the Paying Transaction Party shall indemnify the Receiving Transaction
Party from and against any loss suffered or incurred as a result of any
discrepancy between (a) the rate of exchange used for such purpose to
convert such Sum from the First Currency into the Second Currency and
(b) the rate or rates of exchange available to such Person at the time
of receipt of such Sum.
21.3 CURRENCY OF ACCOUNT AND PAYMENT
Except where specified otherwise, Sterling is the currency of account
and payment for each and every sum at any time due from one Transaction
Party to another under the Documents, except that each payment in
respect of costs and expenses in respect of a Document shall be made in
the currency in which the same were incurred.
21.4 PAYMENTS TO THE ISSUER
On each date on which any Document requires an amount to be paid by a
Transaction Party to the Issuer, such Transaction Party shall make the
relevant amount available to the Issuer by payment to the Issuer
Distribution Account for value on the due date no later than the time
specified in the relevant Document or, if no time is specified in the
relevant Document, by close of banking hours in the place of payment on
the due date.
21.5 PAYMENTS TO OTHER TRANSACTION PARTIES
On each date on which any Document requires an amount to be paid by one
Transaction Party to another Transaction Party (other than to a
Transferor or to the Issuer), the Paying Transaction Party shall make
the relevant amount available to the Receiving Transaction Party by
payment to the account specified in the relevant Document for value on
the due date no later than the time specified in the relevant Document
or, if no
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time is specified in the relevant Document, by close of banking hours in
the place of payment on the due date.
21.6 NO SET-OFF
All payments required to be made by any Transaction Party under any
Documents except any swap agreement shall be calculated without
reference to any set-off or counterclaim and shall be made free and
clear of and without any deduction for or on account of any set-off or
counterclaim.
21.7 PARTIAL PAYMENTS
If and whenever a payment is made by any Transaction Party to another
under any Document, the Receiving Transaction Party shall, except as
otherwise provided in any Document, apply the amount received towards
the obligations of the Paying Transaction Party under the relevant
Document in the following order:
21.7.1 first, in or towards payment of any Liabilities which the
Receiving Transaction Party is entitled to be paid under the
terms of the relevant Document;
21.7.2 secondly, in or towards payment pro rata of any accrued
interest due but unpaid;
21.7.3 thirdly, in or towards payment pro rata of any principal due
but unpaid; and
21.7.4 fourthly, in or towards payment pro rata of any other sum due
but unpaid.
21.8 VARIATION OF PARTIAL PAYMENTS
The order of payments set out in Clause 21.7 (Partial Payments) shall
override any appropriation made by any Obligor but the order set out in
the last three sub-clauses of Clause 21.7 (Partial Payments) may be
varied if the relevant Transaction Parties so agree.
21.9 BUSINESS DAYS
Except as otherwise provided in any Document any payment which is due to
be made on a day that is not a Business Day shall be made on the next
Business Day in the same calendar month (if there is one) or on the
preceding Business Day (if there is not).
21.10 RECTIFICATION
If any amount paid pursuant to a Document (other than by or to the Note
Trustee) shall be determined (after consultation in good faith between
the Transaction Parties which are parties to the relevant Document) to
have been incorrect, the Transaction Parties shall consult in good faith
in order to agree upon an appropriate method for rectifying such error
so that the amounts subsequently received and retained by all relevant
Transaction Parties are those which they would have received and
retained if no such error had been made.
22. VALUE ADDED TAX
22.1 Except as otherwise provided in the relevant Document, any sum payable
under a Document by one Transaction Party (other than the Issuer or the
Loan Note Issuer) to another is deemed to be exclusive of any VAT
chargeable on any supply by the other
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Transaction Party for which that sum is the consideration (in whole or
in part) for VAT purposes.
22.2 Except as otherwise provided in the relevant Document, any sum payable
or other consideration provided under a Document by the Issuer or the
Loan Note Issuer is inclusive of any VAT chargeable at any rate on any
supply for which that sum is the consideration (in whole or in part) for
VAT purposes and section 89 of VATA shall not apply to affect the amount
of such sum or other consideration.
22.3 Where:
22.3.1 any Transaction Party (such Person a "SUPPLIER" for the
purposes of this Clause 22) makes a supply to another
Transaction Party (such Person the "RECIPIENT" in relation to
that supply for the purposes of this Clause 22) for VAT
purposes pursuant to a Document;
22.3.2 the sum which is the consideration (in whole or in part) for
that supply is deemed to be exclusive of VAT (or would be so
deemed if the consideration were in cash); and
22.3.3 VAT is or becomes chargeable on such supply for which the
Supplier is required to account to HM Revenue and Customs,
the Recipient shall pay to the Supplier an amount equal to that VAT (in
addition to any other consideration for such supply), such payment to be
made no later than two Business Days before the last day (as notified to
the Recipient in writing by the Supplier) on which the Supplier can
account to HM Revenue and Customs or the relevant Tax Authority (as the
case may be) for such VAT without incurring interest or penalties.
22.4 If, in relation to any supply made pursuant to a Document for VAT
purposes which gives rise to a charge imposed by section 8 of VATA (or
equivalent provisions of any other VAT legislation), the Recipient of
the supply is the Issuer:
22.4.1 The consideration for such supply consists wholly of money,
such consideration shall be reduced to such amount as, with
the addition thereto of the VAT chargeable in respect of such
supply, equals the original amount payable by the Recipient;
or
22.4.2 the consideration for such supply does not consist of, or
wholly of, money, the Supplier shall pay to the Recipient an
amount equal to the VAT chargeable in respect of such supply,
such payment to be made no later than two Business Days before
the last day (as notified to the Supplier in writing by the
Recipient) on which the Recipient can account to HM Revenue
and Customs for such VAT without incurring interest or
penalties.
22.5 Any reference in a Document to any fee, cost, disbursement, expense or
liability incurred by any Transaction Party and in respect of which such
party is to be reimbursed (or indemnified) by any other Person or the
amount of which is to be taken into account in any calculation or
computation shall, save where the context otherwise requires, include a
reference to VAT incurred (including, without limitation, any VAT
incurred under
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section 8 of VATA (or equivalent provisions of any other VAT
legislation)) by such Transaction Party in respect of such fee, cost,
disbursement, expense or liability, save where the Transaction Party
concerned is not the Issuer, the Loan Note Issuer or the Note Trustee,
in which case the reference to VAT is only to the extent that such
Transaction Party is not entitled to obtain credit or repayment in
respect of such VAT from HM Revenue and Customs or any other Tax
Authority.
22.6 Any reference herein to a Transaction Party shall (where appropriate) be
deemed, with respect to any time when such party is treated as a member
of a group for the purposes of sections 43 to 43C of the VATA, to
include a reference to the representative member of such group.
23. WITHHOLDING TAXES
23.1 TAX DEDUCTION
Except as otherwise provided in any Document, each payment made by a
Paying Transaction Party to a Receiving Transaction Party under any
Document shall be made without any Tax Deduction, unless a Tax Deduction
is required by any Requirement of Law.
23.2 NOTIFICATION
If a Paying Transaction Party becomes aware that it must make a Tax
Deduction in respect of any payment under any Document (or that there is
any change in the rate or the basis of a Tax Deduction) it shall notify
the Receiving Transaction Party accordingly.
24. ECONOMIC AND MONETARY UNION
24.1 If the Notes are redenominated pursuant to Condition 19 (Redenomination,
Renominalisation and Reconventioning), then following redenomination and
subject always to the terms of Condition 19 (Redenomination,
Renominalisation and Reconventioning):
24.1.1 Denominations: if Individual Note Certificates are required to
be issued, they shall be issued in euro in such denominations
as the Principal Paying Agent shall determine and notify to
the Noteholders;
24.1.2 Calculation of Interest: the amount of interest due in respect
of the Notes represented by the Global Note Certificates will
be calculated by reference to the aggregate principal amount
of such Global Note Certificates and the amount of such
payment shall be rounded down to the nearest euro 0.01.
25. COSTS
Except as otherwise provided in a Document, each Transaction Party
(other than the Note Trustee and Security Trustee) shall pay its own
costs relating to the negotiation, preparation, execution and
implementation by it of each Document and of each document referred to
in it.
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PART 3
GOVERNING LAW PROVISIONS
26. GOVERNING LAW
This Agreement and all matters arising from or connected with it shall
be governed by English law save that those parts of the Arran Funding
Note Trust Deed concerned with the creation, subsistence or enforcement
of any Issuer Jersey Security Interest shall be governed by and
construed in accordance with Jersey law.
27. JURISDICTION
27.1 ENGLISH COURTS
The courts of England have exclusive jurisdiction to settle any Dispute.
27.2 CONVENIENT FORUM
The parties other than the Note Trustee agree that the courts of England
are the most appropriate and convenient courts to settle Disputes
between them and, accordingly, that they will not argue to the contrary.
27.3 JURISDICTION
Paragraph 27.1 (English Courts) is for the benefit of the Note Trustee
for the purpose of this Paragraph 27 in any Transaction Document. As a
result each party acknowledges that Paragraph 27.1 (English Courts),
does not prevent the Note Trustee from taking any Proceedings in any
other courts with jurisdiction. To the extent allowed by law, the Note
Trustee may take concurrent Proceedings in any number of jurisdictions.
27.4 PROCESS AGENT
The Issuer agrees that the documents which start any proceedings
relating to a Dispute and any other documents required to be served in
relation to those proceedings may be served on it by being delivered to
▇▇▇▇▇▇▇▇ Chance Secretaries Limited at ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇
▇▇▇. If such Person is not or ceases to be effectively appointed to
accept service of process on behalf of the Issuer, the Issuer shall, on
the written demand of any Paying Agent or the Note Trustee addressed to
the Issuer and delivered to the Issuer, appoint a further Person in
England to accept service of process on its behalf and, failing such
appointment within 15 days, any Paying Agent or the Note Trustee shall
be entitled to appoint such a Person by written notice addressed to the
Issuer and delivered to the Issuer. Nothing in this paragraph shall
affect the right of any Paying Agent of the Note Trustee to serve
process in any other manner permitted by law. This clause applies to
Proceedings in England and to Proceedings elsewhere.
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SCHEDULE 3
NOTICES DETAILS
The address referred to in Paragraph 19 (Notices) of the Common Terms is:
1. IN THE CASE OF THE ROYAL BANK OF SCOTLAND PLC, AS TRANSFEROR:
Address: ▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Tel: [*]
Fax: [*]
Attention: [*]
2. IN THE CASE OF THE ROYAL BANK OF SCOTLAND PLC AS CO-LEAD DEALER:
Address: ▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Tel: [*]
Fax: [*]
Attention: [*]
3. IN THE CASE OF THE NATIONAL WESTMINSTER BANK PLC AS TRANSFEROR:
Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Fax: [*]
Attention: [*]
4. IN THE CASE OF THE ISSUER:
Address: Arran Funding Limited, ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Tel: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Fax: ▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: MIFA J Corporate 6
and a copy to the Transferors.
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5. IN THE CASE OF THE NOTE TRUSTEE:
Address: The Bank of New York, London Branch ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Tel: [*]
Fax: [*]
Attention: [Corporate Trust, Global Structured Finance]
- 46 -
6. IN THE CASE OF THE PRINCIPAL PAYING AGENT, THE AGENT BANK AT ITS
SPECIFIED OFFICE BEING:
Address: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ 21 West, New York, New York
10286
Fax: [*]
Attention: [*]
7. IN THE CASE OF THE NEW YORK PAYING AGENT AT ITS SPECIFIED OFFICE BEING:
Address: [*]
Fax: [*]
Attention: [*]
8. IN THE CASE OF THE ACCOUNT BANK:
Address: ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇, Channel
Islands
Fax: [*]
Attention: [*]
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SCHEDULE 4
ISSUER'S REPRESENTATIONS AND WARRANTIES
PART 1
CORPORATE REPRESENTATIONS AND WARRANTIES OF THE ISSUER
1. MANAGEMENT AND ADMINISTRATION
The Issuer represents and warrants that its management, the places of
residence of the majority of its directors, the place at which its
meetings of the board of directors are held and the place from which its
interests are administered are all situated in Jersey.
2. NO SUBSIDIARIES, EMPLOYEES OR PREMISES
The Issuer represents and warrants that it has no branch office in any
jurisdiction other than Jersey, no subsidiaries and no employees.
PART 2
TRANSACTION DOCUMENT REPRESENTATIONS AND WARRANTIES OF THE ISSUER
1. CORPORATE POWER
The Issuer has the requisite power and authority to:
1.1 enter into each Relevant Document; and
1.2 create and issue the Notes and the Security, and to undertake and
perform the obligations expressed to be assumed by it therein.
2. AUTHORISATION
All acts, conditions and things required to be done, fulfilled and
performed in order:
2.1 to enable the Issuer lawfully to issue, distribute and perform the terms
of the Notes and distribute the Prospectus and Final Terms in accordance
with the selling restrictions set out in Schedule 1 of the Dealer
Agreement;
2.2 to enable the Issuer lawfully to enter into each Relevant Document;
2.3 to enable the Issuer lawfully to exercise its rights under and perform
and comply with the obligations expressed to be assumed by it in the
Relevant Documents;
2.4 to ensure that the obligations expressed to be assumed by it in the
Notes and the Relevant Documents are legal, valid, binding and
enforceable against it; and
2.5 to make the Notes and the Relevant Documents admissible in evidence in
the Issuer Jurisdiction,
have been done, fulfilled and performed and are in full force and effect
or, as the case may be, have been effected, and no steps have been taken
to challenge, revoke or cancel any such authorisation obtained or
effected.
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3. EXECUTION
The Relevant Documents have been duly executed by the Issuer.
4. NO BREACH OF LAW OR CONTRACT
The entry by the Issuer into and the execution (and, where appropriate,
delivery) of the Relevant Documents and the performance by the Issuer of
its obligations under the Relevant Documents do not and will not
conflict with or constitute a breach or infringement by the Issuer of:
4.1 the Issuer's Memorandum and Articles of Association;
4.2 any Requirement of Law or any Regulatory Direction in force as at the
date of this Agreement; or
4.3 any agreement, indenture, contract, mortgage, deed or other instrument
to which the Issuer is a party or which is binding on it or any of its
assets.
5. VALID AND BINDING OBLIGATIONS
The obligations expressed to be assumed by the Issuer under the Relevant
Documents (other than the Notes) are legal and valid obligations,
binding on it and enforceable against it in accordance with their terms,
except:
5.1 as such enforcement may be limited by applicable bankruptcy, insolvency,
moratorium, reorganisation or other similar laws affecting the
enforcement of the rights of creditors generally;
5.2 as such enforceability may be limited by the effect of general
principles of equity; and
5.3 obligations relating to stamp duties may be void by virtue of Section
117 of the Stamp ▇▇▇ ▇▇▇▇.
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SCHEDULE 5
ISSUER COVENANTS
The Issuer, in respect of each Series, hereby covenants with the Note
Trustee that, until (i) no further sums are outstanding in respect of
any Secured Obligation of Issuer; (ii) Issuer has fulfilled and
discharged all of the Secured Obligations in respect of each Series; and
(iii) this Arran Funding Master Framework Agreement is terminated as
between Issuer and all the other parties, it shall in relation to its
respective obligations under any Series:
(a) CONDUCT: at all times carry on and conduct its affairs in a
proper and efficient manner and for the purposes of UK GAAP,
not engage in any activities other than Permitted Activities;
(b) INFORMATION: so far as permitted by law, at all times give to
the Note Trustee and procure that there is given to it such
certificates, information and evidence as it shall reasonably
require and in such form as it shall reasonably require in
relation to the performance of its functions under the
Documents;
(c) AUDITORS' REPORTS: cause to be prepared and certified by the
Auditors in respect of each financial year, accounts in such
form as will comply with accounting principles generally
accepted in the United Kingdom and with the requirements of
the UKLA;
(d) GUARANTEE: not, without the prior written consent of the Note
Trustee, give any guarantee or indemnity (other than as
contemplated by the Series Documents and the Articles of
Association of Issuer);
(e) NO UK BRANCH OR EMPLOYEES: not at any time maintain any
permanent establishment, branch, office or agency in the
United Kingdom or anywhere else other than Jersey and have any
employees;
(f) CENTRE OF MAIN INTERESTS: maintain its "centre of main
interests", as that term is used in Article 3(i) of the EU
Regulation on Insolvency Proceedings No. 1346/2000, in Jersey;
(g) BOOKS OF ACCOUNTS: at all times keep proper books of account
and allow the Note Trustee and any Person appointed by it, to
whom the Issuer has no reasonable objection, access to the
books of account of the Issuer at all reasonable times during
normal business hours and to discuss the same with a nominated
officer of the Issuer and in the event that audited financial
accounts of the Issuer are produced, to provide a copy thereof
to the Note Trustee in relation to each Series;
(h) NOTIFICATION OF EVENT OF DEFAULT: give notice in writing to
the Note Trustee and the Noteholders in respect of such Series
forthwith upon becoming aware of the occurrence of an Event of
Default or Potential Event of Default in relation to such
Series and without waiting for the Note Trustee to take any
action;
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(i) FURTHER ACTS: at all times execute and do all such further
documents, acts and things as may be necessary at any time or
times in the opinion of the Note Trustee to give effect to the
Conditions and to these presents and each of the other
Documents;
(j) TAX JURISDICTION: maintain its residence outside the United
Kingdom for the purposes of United Kingdom taxation;
(k) TAX: at all times use its best efforts to minimise taxes and
any other costs arising in connection with its activities;
(l) LISTING AND ADMISSION TO TRADING: use all reasonable
endeavours to obtain and maintain the listing of the Notes of
each Series on the Official List and to obtain and maintain
the admission to trading on the London Stock Exchange
(including compliance with the continuing obligations
applicable to the Issuer by virtue of the admission of the
Notes to the Official List or the admission to trading on the
London Stock Exchange) or, if it is unable to do so having
used all reasonable endeavours, use all reasonable endeavours
to obtain and maintain a quotation or listing of the Notes on
such other stock exchange or exchanges or securities market or
markets which is a recognised stock exchange for the purposes
of section 349 of the Income and Corporation Taxes Act 1988 as
the Issuer may (with the prior written approval of the Note
Trustee) decide, and shall also use all reasonable endeavours
to procure that there will at all times be furnished to the
London Stock Exchange or to any other such stock exchange or
securities market such information as the London Stock
Exchange, UKLA or, as the case may be, any other such stock
exchange or securities market may require to be furnished in
accordance with its requirements and shall also upon obtaining
a quotation or listing of the Notes on such other stock
exchange or exchanges or securities market or markets enter
into a deed supplemental to the Arran Funding Note Trust Deed
to effect such consequential amendments to the Arran Funding
Note Trust Deed as the Note Trustee may require or as shall be
requisite to comply with the requirements of any such stock
exchange or securities market;
(m) NOTICE TO NOTEHOLDERS: obtain the prior written approval of
the Note Trustee to, and promptly give to the Note Trustee, or
ensure that the Note Trustee receives, four copies of, the
form of every notice given to the Noteholders in accordance
with the Notices Condition, such approval, unless so
expressed, shall not constitute approval for any other
purposes (including approval of such notice for the purpose of
Section 21 of the Financial Services and Markets Act 2000);
(n) ASCERTAINMENT OF OUTSTANDING AMOUNTS OF THE NOTES: in order to
enable the Note Trustee to ascertain the number and amount of
Notes for the time being outstanding for any of the purposes
referred to in the proviso to the definition of "OUTSTANDING"
contained in the Master Definitions Schedule, deliver to the
Note Trustee forthwith upon being so requested in writing by
the Note Trustee a certificate in writing signed by a Director
of the Issuer setting out the total number and the principal
amount of the Notes which:
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(a) up to and including the date of such certificate have
been redeemed by the Issuer and cancelled; and
(b) are at the date of such certificate beneficially held by
or for the account of the Issuer;
(o) COMPLIANCE: at all times comply with and perform all its
obligations under these presents, the Conditions and under the
Documents and use all reasonable endeavours to procure that
the other parties thereto, other than the Note Trustee (or any
Person which is the Note Trustee acting in another capacity),
comply with and perform all their respective obligations
thereunder and not make any amendment or modification thereto
or agree to waive or authorise any breach thereof without the
prior written approval of the Note Trustee;
(p) APPLICABLE LAWS: ensure that each Series and all other
transactions to be effected hereunder shall at the time when
they are entered into comply with all applicable laws and
regulations of any governmental or other regulatory authority
of the United Kingdom, Jersey and the United States of America
for the purposes of any relevant Series Documents and that all
necessary consents and approvals of, and registrations and
filings with, any such authority in connection therewith are
obtained and maintained in full force and effect and copies
thereof are supplied promptly to the Note Trustee;
(q) MODIFICATIONS TO DOCUMENTS: unless specified otherwise in the
relevant Arran Funding Note Trust Deed Supplement, not make or
consent to any material amendment, variation or termination to
any Document in respect of any Series or any Secured Property
in respect of such Series (including for the avoidance of
doubt each programme agreement) without the prior written
consent of the Note Trustee (in its capacity as trustee);
(r) LOAN NOTES: to provide such information to the Note Trustee as
it shall require regarding the Loan Notes;
(s) NOTICE OF SECURITY: promptly after the date hereof join with
the Note Trustee in giving notice to each relevant Person of
the Security granted to the Note Trustee and procure that each
such Person acknowledges the same. In addition to the
foregoing, Issuer shall from time to time deliver, and assist
the Note Trustee in delivering, any other notices in relation
to any Security as the Note Trustee may reasonably request;
(t) EXEMPT COMPANY: use commercially reasonable efforts to
maintain its status as an "exempt company" within the meaning
of Article 123A of the Income Tax (Jersey) Law 1961, as
amended for so long as such status is available;
(u) PERFECTION: forthwith upon execution of any further
instruments or documents pursuant to any Arran Funding Note
Trust Deed Supplement creating or purporting to create or to
perfect or to protect any security interest by Issuer,
register in any jurisdiction where such registration may be
required, details of such instrument or document;
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(v) AUTHORISED SIGNATORIES: upon the execution of this Agreement
and thereafter forthwith upon any change of the same, deliver
to the Note Trustee a list of the Authorised Signatories of
Issuer, together with certified specimen signatures of the
same;
(w) BANK ACCOUNTS: to maintain all relevant bank accounts in
Jersey;
(x) STAMP DUTY: pay any stamp, issue, documentary or other similar
taxes and duties (if any), including interest and penalties,
payable in Jersey and the United Kingdom in respect of the
creation, issue and offering of the Notes and the execution or
delivery of the Arran Funding Note Trust Deed. The Issuer will
also indemnify the Note Trustee, the Noteholders from and
against all stamp, issue, documentary or other similar taxes
(excluding, for the avoidance of doubt, VAT) paid by any of
them in any such jurisdiction in connection with any action
taken by or on behalf of the Note Trustee or, as the case may
be, the Noteholders to enforce the Issuer's obligations under
the Arran Funding Note Trust Deed and the Notes;
(y) BOARD MEETINGS, MANAGEMENT AND ADMINISTRATION: shall (i) hold
all meetings of the board of directors of the Issuer in
Jersey, (ii) not hold any such meeting outside Jersey, (iii)
procure that its central management and control, the places of
residence of the majority of its directors and the place where
its interests are administered on a regular basis will, at all
times, remain situated in Jersey and (iv) only hold board
meetings when the Jersey resident directors present at the
board meeting in Jersey are in the majority at such board
meeting;
(z) SWAP COUNTERPARTY: in executing the relevant Arran Funding
Note Trust Deed Supplement, procure that the Swap Counterparty
will covenant with the Note Trustee that:
(a) it will comply with and be bound by the terms of the
relevant Swap Agreement; it will not amend the relevant
Swap Agreement without the consent of the Note Trustee;
its recourse in respect of its claim under the relevant
Swap Agreement is limited to the proceeds of the Secured
Property as provided in the Arran Funding Note Trust
Deed and Clause 7 (Restriction on Enforcement of
Security and Non-Petition) hereof and no debt shall be
owed by the Issuer in respect of any shortfall; and it
may take no action against the Issuer as provided in the
Arran Funding Note Trust Deed (including instituting or
joining with any other Person in bringing, instituting
or joining, insolvency proceedings (whether court based
or otherwise) in relation to the Issuer) to enforce its
rights; and
(b) all provisions of the Arran Funding Note Trust Deed as
regards the entitlement of the Note Trustee to appoint
agents and delegates, to rely upon experts' opinions and
otherwise defining the rights and responsibilities of
the Trustee with regard to the Secured Property in
relation to such Series shall also apply as between the
Note Trustee and the Swap Counterparty.
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(aa) INFORMATION REGARDING NOTEHOLDERS: shall furnish or cause to
be furnished to the Note Trustee at such times as the Note
Trustee may request in writing, all information in the
possession or control of the Issuer, or of its registrar, as
to the names and addresses of the Noteholders, and requiring
the Note Trustee to preserve, in as current a form as is
reasonably practicable, all such information so furnished to
it or received by it in the capacity of registrar;
(bb) SEC REPORTS: file with the Note Trustee copies of the annual
reports and of the information, documents, and other reports
(or copies of such portions of any of the foregoing as the SEC
may by rules and regulations prescribe) which the Issuer is
required to file with the SEC pursuant to Section 13 or 15(d)
of the Exchange Act within 15 days after it files them with
the SEC. The Issuer also shall comply with the other
provisions of TIA [SECTION] 314(a);
(cc) OFFICERS' CERTIFICATES AND OPINIONS OF COUNSEL; STATEMENTS TO
BE CONTAINED THEREIN: Upon any application, demand or request
by the Issuer to the Note Trustee to take any action under any
of the provisions of the Arran Funding Note Trust Deed (other
than the issuance of Notes) and upon request of the Note
Trustee, the Issuer shall furnish to the Note Trustee an
Officers' Certificate and Opinion of Counsel complying with
the provisions of Section 314 (e) of the TIA. Each certificate
or opinion provided for in the Arran Funding Note Trust Deed
and delivered to the Note Trustee with respect to compliance
with a condition or covenant provided for in this Trust Deed
shall include the items required by Section 314(e) of the TIA
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EXECUTION PAGE
ARRAN FUNDING LIMITED
BY:
EXECUTED FOR AND ON BEHALF OF
THE BANK OF NEW YORK, LONDON BRANCH
BY:
_______________________________
AUTHORISED SIGNATORY
EXECUTED FOR AND ON BEHALF OF
THE BANK OF NEW YORK
BY:
_______________________________
AUTHORISED SIGNATORY
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