[GRAPHIC OMITTED]
XXXXXXXX LIMITED LIABILITY PARTNERSHIP
CHANCE
CONFORMED COPY
WILMINGTON TRUST SP SERVICES (LONDON) LIMITED
as WTSS
TURQUOISE HOLDINGS LIMITED
as Holdings
and
TURQUOISE CARD BACKED SECURITIES PLC
as Issuer
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CORPORATE SERVICES AGREEMENT
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CONTENTS
CLAUSE PAGE
1. Definitions And Interpretation........................................1
2. Appointment Of Corporate Services Provider............................2
3. Standard Of Care......................................................3
4. Appointment Of Directors And Secretaries..............................3
5. Services To Be Provided...............................................3
6. Indemnity.............................................................4
7. Representations And Warranties........................................6
8. Appointment Of Agents.................................................8
9. Remuneration, Costs And Expenses......................................8
10. Confidentiality.......................................................9
11. Termination..........................................................10
12. Assignment...........................................................11
13. Non-Petition And Limited Recourse....................................11
14. Obligations As Corporate Obligations.................................12
15. Rights Of Third Parties..............................................12
16. Further Assurance....................................................13
17. Variation............................................................13
18. Exercise And Rights And Remedies.....................................13
19. Notices..............................................................13
20. Partial Invalidity...................................................14
21. Force Majeure........................................................14
22. No Restrictions......................................................14
23. Counterparts.........................................................15
24. Governing Law........................................................15
25. Jurisdiction.........................................................15
26. Execution............................................................15
THIS AGREEMENT is made on 23 May 2006.
BETWEEN;
(1) WILMINGTON TRUST SP SERVICES (LONDON) LIMITED (registered number
2548079), whose principal place of business is at Tower 42 (Level 11),
International Financial Centre, 00 Xxx Xxxxx Xxxxxx, Xxxxxx XX0X 0XX
("WTSS"); and
(2) TURQUOISE HOLDINGS LIMITED (registered number 5554872), whose principal
place of business is at c/o Wilmington Trust SP Services (London)
Limited, Tower 42 (Level 11), 00 Xxx Xxxxx Xxxxxx, Xxxxxx XX0X 0XX
("HOLDINGS"); and
(3) TURQUOISE CARD BACKED SECURITIES PLC (registered number 5506646), whose
principal place of business is at c/o Wilmington Trust SP Services
(London) Limited, Tower 42 (Level 11), 00 Xxx Xxxxx Xxxxxx, Xxxxxx XX0X
0XX (the "ISSUER").
INTRODUCTION:
(A) Holdings and the Issuer propose to become involved in a securitisation
transaction (the "TRANSACTION") as described in the Base Prospectus.
(B) Holdings has an issued share capital of (pound)12,700 divided into
12,700 ordinary shares, all of which are held by, or on behalf of, WTSS
under a Declaration of Trust dated 19 April 2006 (the "DECLARATION OF
TRUST") of which WTSS is the share trustee (the "SHARE TRUSTEE") for the
beneficiaries named therein.
(C) The Issuer has a share capital of 50,000 ordinary shares of (pound)1.00
each, two shares of which are fully paid-up and 49,998 of which are one
quarter paid-up. 49,999 shares are held by Holdings and one share is
held by WTSS as trustee for the benefit of Holdings.
(D) The directors of Holdings and the Issuer are WTSS, Xxxx Xxxxx and Xxxx
Xxxxxx, all of whom have been nominated by WTSS and elected by each
Company's shareholders. The company secretary of Holdings and the Issuer
is WTSS.
(E) WTSS has agreed to provide certain corporate services to Holdings and
the Issuer subject to and in accordance with the terms and conditions of
this Agreement.
THE PARTIES AGREE AS FOLLOWS:
1. DEFINITIONS AND INTERPRETATION
1.1 Unless otherwise defined in this Agreement or the context so requires
otherwise, words and expressions used in this Agreement shall have the
meanings and constructions ascribed to them in the Master Framework
Agreement.
1.2 In this Agreement and in the introduction hereto, unless the context
otherwise requires:
"ANNUAL MANAGEMENT FEE" shall have the meaning given thereto in the WTSS
Fee Letter;
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"ASSOCIATED PERSON" of a Person means a director, officer, company
secretary, employee, or provider of corporate administration services or
agent thereof to such Person;
"BASE PROSPECTUS" means the base prospectus dated on or about the date
hereof prepared by the Companies in connection with the Transaction;
"BOARD OF DIRECTORS" and "DIRECTORS" means the board of directors of the
Company and directors for the time being of the Company as the context
so requires and "DIRECTOR" shall mean any one of them;
"COMPANY" means either the Issuer or Holdings and "COMPANIES" means
Both.
"CONDITIONS PRECEDENT" means the conditions precedent set out in
Schedule 1 of this Agreement;
"FEE LETTER" means the letter dated 23 May 2006 between WTSS and the
Issuer and Holdings pursuant to which it was agreed that WTSS would
provide certain corporate services to each Company;
"FORCE MAJEURE EVENT" means any event beyond the reasonable control of a
party including, without limitation, strikes, lock-outs, labour
disputes, acts of God, war, riot, civil commotion, malicious damage,
compliance with any law of governmental order, rule, regulation or
direction, accident, breakdown of plant or machinery, fire, flood,
storm;
"INITIAL FEE" shall be the fee payable to WTSS on the Closing Date as
described in the Fee Letter;
"NOTICE" means any notice delivered under or in connection with this
Agreement;
"PERSON" means any person, body corporate, association or partnership
and shall include their legal personal representatives, successors and
permitted assigns; and
"SECRETARY" means the company secretary for the time being.
1.3 The Common Terms apply to this Agreement and shall be binding on the
parties to this Agreement as if set out in full in this Agreement.
1.4 If there is any conflict between the provisions of the Common Terms and
the provisions of this Agreement, the provisions of this Agreement shall
prevail.
2. APPOINTMENT OF CORPORATE SERVICES PROVIDER
2.1 Each Company hereby appoints WTSS to be its corporate services provider
on the terms and conditions set out in this Agreement and WTSS accepts
such appointment.
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2.2 The appointment of WTSS pursuant to Clause 2.1 shall be subject to the
satisfaction of all the Conditions Precedent prior to the Closing Date
unless otherwise agreed in writing by WTSS.
3. STANDARD OF CARE
During the term of this Agreement, WTSS shall, at all times perform its
obligations with all due care, skill and diligence and in the utmost
good faith provided that WTSS shall not be required to do or cause to be
done anything which it is prevented from doing by any Regulatory
Direction or any Requirement of Law.
4. APPOINTMENT OF DIRECTORS AND SECRETARIES
4.1 During the term of this Agreement, WTSS will nominate 3 Persons who are
willing and available to be appointed as Directors and one Person which
is willing and able to be appointed as Secretary and WTSS shall procure
that each of the persons nominated by it as a Director (a "NOMINATED
DIRECTOR") or Secretary (a "NOMINATED SECRETARY") from time to time
accepts the relevant appointment and acts in the relevant capacity and
does so without fee or remuneration from each Company, save that nothing
in this Agreement shall prejudice the right of any Person under Clause 9
(Remuneration) or Clause 6 (Indemnity) of this Agreement or under the
Articles of Association of the Company to fees, remuneration or other
payments.
4.2 WTSS hereby confirms that, if any of the Nominated Directors or the
Nominated Secretary of a Company should resign or retire or for any
other reason cease to act as Director or Secretary (as the case may be),
it will promptly:
4.2.1 procure that such Nominated Director or Nominated Secretary (as
the case may be) shall acknowledge in writing (except in the
case of death, or sudden incapacity) that he has no claim of any
nature whatsoever against that Company;
4.2.2 nominate another Person willing to act in the relevant capacity;
and
4.2.3 procure the consent of that person to act in that capacity.
5. SERVICES TO BE PROVIDED
5.1 Subject to Clause 5.2, WTSS agrees to provide the following services as
applicable:
5.1.1 arranging all general company secretarial, registrar and company
administration services required by each Company as a result of
any Requirement of Law or Regulatory Direction;
5.1.2 preparing the annual financial statements of each Company prior
to audit;
5.1.3 arranging, (at the expense of each Company), for the preparation
and filing of the corporation tax computation and return;
5.1.4 providing a place at which each Company's registered office may
be situate;
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5.1.5 keeping the register of shareholders, issuing share
certificates, and effecting share transfers and filings (insofar
as the Board of Directors have approved, signed and delivered
the same and monies in respect of applicable fees are made
available) and any applicable statutory returns and tax filings;
5.1.6 the convening of shareholders' meetings and Board of Directors
meetings of each Company as and when required, providing
facilities for holding such meetings and preparing and keeping
minutes of such meetings;
5.1.7 accepting service of process and any other documents or notices
to be served on each Company;
5.1.8 as and when requested by a Director, the Secretary of a Company
or the auditor of a Company, delivering to such person such
information in connection with that Company as may be in
possession of WTSS or, as the case may be, reasonably obtainable
by it;
5.1.9 at the request of the Board of Directors, preparing and
forwarding to the shareholders all statements and notices which
the Board of Directors is required to issue and sending or
serving the same in accordance with a Company's Articles of
Association;
5.1.10 giving, at the request of the Board of Directors, any directions
and information concerning the Companies to any providers of
services (such as the Servicer, auditors, accountants, financial
or management advisers or attorneys) or other agents appointed
by the Board of Directors;
5.1.11 acting at all times in accordance with all reasonable and proper
directions, orders and instructions given to it in writing or in
board meetings by the Board of Directors; and
5.1.12 communicating with the Directors as necessary.
5.2 WTSS shall not be required to expend or risk its own funds or otherwise
incur financial liability in the performance of any of its duties
referred to in Clause 5.1 or in the exercise of any of its rights or
powers thereunder if there are reasonable grounds for it believing that
the reimbursement of such expenditure or indemnity satisfactory to it
against such risk or liability is not assured.
5.3 During the term of this Agreement, WTSS shall ensure that the Issuer is,
at all times, solely centrally managed and controlled from within the
United Kingdom.
6. INDEMNITY
6.1 Subject to Clause 6.2, each Company shall indemnify WTSS and all
Associated Persons of WTSS (together "INDEMNIFIED PERSONS") against all
Liabilities arising from or connected with the appointment of WTSS as
corporate services provider and WTSS's performance of the services and
other obligations set out in this Agreement.
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6.2 An Indemnified Person shall be entitled to be indemnified under Clause
6.1 if and only if:
6.2.1 it and, to the extent that it was not acting as principal, its
principal acted in good faith and without Breach of Duty in
relation to the matters in respect of which the indemnity is
sought; and
6.2.2 it complies fully at all times with the remaining provisions of
this Clause 6.
6.3 For the purposes of Clause 6.2.1 it shall not be considered a Breach of
Duty by an Indemnified Person to the extent that such Breach of Duty
arises as a result of:
6.3.1 any failure or delay on the part of any other party to the
Transaction in supplying any information or the supplying of
incorrect, incomplete or inaccurate information;
6.3.2 any Breach of Duty by any other party to the Transaction; or
6.3.3 any action taken by WTSS at the request of a Company or the Note
Trustee in relation to the Transaction.
6.4 If an Indemnified Person becomes aware of a matter which does or might
give rise to a right to an indemnity under Clause 6.1 (a "CLAIM"), it
shall:
6.4.1 promptly after becoming aware notify the relevant Company in
writing of the Claim (an "INDEMNITY NOTICE") stating in
reasonable detail:
(a) the nature of the Claim and the level of Liabilities
incurred or likely to be incurred; and
(b) any claims to an indemnity, contribution or otherwise
which it has or may have against any other Person in
respect of the Claim; and
6.4.2 promptly provide any documents, information or other assistance
in relation to the Claim which the relevant Company reasonably
request at any time until the Claim is resolved.
6.5 Within 15 working days of receipt of an Indemnity Notice, the relevant
Company shall state in writing whether, subject to continuing compliance
with this Clause 6, it will provisionally indemnify the Indemnified
Person in respect of the Claim set out in the Indemnity Notice.
6.6 If the relevant Company states in writing that, subject to continuing
compliance with this Clause 6, it will provisionally indemnify the
Indemnified Person in respect of a Claim set out in an Indemnity Notice
(an "INDEMNIFIED CLAIM"), the Indemnified Person shall not take any
steps with regard to the Indemnified Claim without first fully
consulting the relevant Company and shall take all steps the relevant
Company reasonably requests in order to:
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6.6.1 mitigate, defend or compromise the Claim including, without
limitation, through the appointment of lawyers, responding to
regulatory or investigative enquiries, the issue of legal
proceedings, the defence of legal or regulatory action,
mediation or the lodging of appeals; and
6.6.2 enforce any rights to an indemnity, contribution or otherwise
which the Indemnified Person has or may have against any other
Person in respect of the Claim.
The relevant Company may by notice in writing withdraw a provisional
indemnity given under Clause 6.4 if, in its absolute discretion, it
considers in the light of the information then available to it that it
is unlikely that the Indemnified Person is entitled to an indemnity in
respect if an Indemnified Claim, in which case the Claim will cease to
be an Indemnified Claim.
6.7 An Indemnified Person shall not settle or do anything which might
compromise its ability to contest a Claim in respect of:
6.7.1 a Claim before the relevant Company has responded in accordance
with Clause 6.4 above or
6.7.2 an Indemnified Claim
without first obtaining the written consent of the relevant Company
(which shall not be unreasonably withheld or delayed).
6.8 The relevant Company shall meet all reasonable expenses and liabilities
reasonably incurred in defending an Indemnified Claim in advance of its
final resolution upon receipt of an undertaking by the Indemnified
Person that it will repay the amounts advanced, together with interest,
at the rate specified in Clause 9.4, from the date of payment by the
relevant Company to the date of repayment, if it is ultimately
determined that the Indemnified Person is not entitled to be indemnified
by the relevant Company under Clause 6.1.
6.9 All payments the relevant Company is obliged to make under this Clause 6
shall be made on the first Interest Payment Date falling more than 15
working days after receipt by the relevant Company of notification in
writing of the sum which the Indemnified Person requests payment of
together with reasonable details of the nature and amount of the
payment.
7. REPRESENTATIONS AND WARRANTIES
7.1 Holdings represents and warrants to WTSS as at the date of this
Agreement that:
7.1.1 it is duly incorporated in England and Wales with limited
liability under the Companies Act, with its registered office at
c/o Wilmington Trust SP Services (London) Limited, Tower 42,
(Level 11), 00 Xxx Xxxxx Xxxxxx, Xxxxxx XX0X 0XX and it has full
power and authority to conduct its business as described in the
Base Prospectus;
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7.1.2 no litigation, arbitration or administrative proceedings of or
before any court, tribunal or governmental body have been
commenced or, so far as the Company is aware are pending or
threatened against the Company or any assets or revenues which
may have a material adverse effect on the Company;
7.1.3 it is a company which is and has, since incorporation, been
resident for tax purposes solely in England and Wales;
7.1.4 it has obtained and maintained in effect all authorisations,
approvals, licenses and consents required in connection with its
business and the consummation of the transactions contemplated
by the Transaction pursuant to any Requirement of Law or any
Regulatory Direction applicable to the Company in England and
Wales and in each other jurisdiction in which the Company
carries on business;
7.1.5 it has its "centre of main interests", as that term is used in
Article 3(i) of the EU Insolvency Regulation, in England and
Wales;
7.1.6 no Insolvency Event has occurred in respect of Holdings;
7.1.7 its management, the places of residence of the directors of
Holdings and the place at which meetings of the board of
directors of Holdings are held are all situated in England and
Wales; and
7.1.8 it has no "establishment", as that term is used in Article 2(h)
of the EU Insolvency Regulation or branch office in any
jurisdiction, no subsidiaries, no employees and no premises.
7.2 The Issuer represents and warrants to WTSS as at the date of this
Agreement that:
7.2.1 it is duly incorporated in England and Wales as a public company
under the Companies Act, with its registered office at c/o
Wilmington Trust SP Services (London) Limited, Tower 42, (Level
11), 00 Xxx Xxxxx Xxxxxx, Xxxxxx XX0X 0XX and it has full power
and authority to conduct its business as described in the Base
Prospectus;
7.2.2 no litigation, arbitration or administrative proceedings of or
before any court, tribunal or governmental body have been
commenced or, so far as the Company is aware are pending or
threatened against the Company or any assets or revenues which
may have a material adverse effect on the Company;
7.2.3 it is a company which is and has, since incorporation, been
resident for tax purposes solely in England and Wales; and
7.2.4 it has obtained and maintained in effect all authorisations,
approvals, licenses and consents required in connection with its
business and the consummation of the transactions contemplated
by the Transaction pursuant to any Requirement of Law or any
Regulatory Direction applicable to the Company in England and
Wales and in each other jurisdiction in which the Company
carries on business.
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7.3 WTSS represents and warrants to the Company as at the date of this
Agreement that:
7.3.1 it is a company duly incorporated in England with limited
liability under the Companies Act, with its principal place of
business at Xxxxx 00, Xxxxx 00, International Financial Centre,
00 Xxx Xxxxx Xxxxxx, Xxxxxx XX0X 0XX existing under the laws of
England and Wales;
7.3.2 no litigation, arbitration or administrative proceedings of or
before any court, tribunal or governmental body have been
commenced or, so far as WTSS is aware, are pending or threatened
against WTSS or any assets or revenues which may have a material
adverse effect on WTSS or this Agreement; and
7.3.3 in its capacity as the Share Trustee, it will not enter into any
document or transaction other than as contemplated by the Issuer
Transaction Documents;
8. APPOINTMENT OF AGENTS
8.1 WTSS shall be entitled to delegate its functions, powers, discretions,
duties and obligations under this Agreement to any person, firm or
corporation (an "AGENT") and any such delegation may be on such terms
and conditions as WTSS, considers reasonable in the context of the
duties and responsibilities assumed hereunder by WTSS.
8.2 WTSS or any Agent shall be at liberty in the performance of their duties
and any exercise of the powers, discretions, privileges and duties
vested in them under this Agreement to act by responsible officers or a
responsible office for the time being and may act or rely upon the
opinion or advice or information obtained by any broker, lawyer,
accountant, auditor, valuer, surveyor, or other professional advisor or
expert who is assisting a Company.
9. REMUNERATION, COSTS AND EXPENSES
9.1 In accordance with the WTSS Fee Letter each Company shall pay to WTSS,
as consideration for its services provided pursuant to this Agreement,
the Annual Management Fee, provided that the invoice for the amount of
such services is received, by the Servicer at 0 Xxxxxx Xxxxxx, Xxxxxx,
X00 0XX at least ten days prior to the Interest Payment Date, relevant
to each payment date, and if such invoice is not received at least ten
days prior to the Interest Payment Date, the Annual Management Fee will
be paid on the following Interest Payment Date. The Annual Management
Fee shall be paid to the bank account specified in the WTSS Fee Letter
attached hereto.
9.2 Each Company shall reimburse WTSS on demand for all reasonable
travelling and other out of pocket expenses properly incurred by it, its
agents, employees, Nominated Directors and Nominated Secretaries in the
performance of its duties and enforcement of its rights under this
Agreement and all reasonable fees and disbursements (including, without
limitation those of a legal nature) incurred by it in the negotiation,
preparation, execution and administration of this Agreement.
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9.3 Each Company shall pay WTSS such additional remuneration, or meet the
cost of such additional expenses (including legal and accounting advice)
as shall be agreed between WTSS and each Company in the event that WTSS
finds it expedient or necessary or is requested by a Company to
undertake duties which WTSS and such Company agrees to be of an
exceptional nature or otherwise outside the scope of the services
provided under Clause 5.
9.4 Any amounts due by a Company to WTSS shall bear interest at the rate of
2.5 per cent. per annum above the base rate from time to time of Royal
Bank of Scotland PLC and interest shall accrue:
9.4.1 in the case of payments made by WTSS prior to the date of
demand, from the date on which the payment was made or such
later date as specified in such demand;
9.4.2 in the case of payments made by WTSS on or after the date of the
demand, from the date specified in such demand, which date shall
not be a date earlier than the date such payments are made;
9.4.3 in the case of any remuneration payable by a Company, from the
due date thereof.
10. CONFIDENTIALITY
10.1 CONFIDENTIALITY OF INFORMATION
WTSS agrees that it shall, and hereby undertakes to procure that each
Nominated Director or Nominated Secretary shall (regardless of whether
or not such person shall still be in office) keep confidential and it
shall not, and hereby undertakes to procure that each Nominated Director
or Nominated Secretary shall not (regardless of whether or not such
person shall still be in office) disclose to any person whatsoever, any
information relating to the business, finances or other matters of a
confidential nature of each Company which it may have obtained as a
result of the execution of this Agreement or of which it may otherwise
have become possesses as a result of its performance of its obligations
under this Agreement.
10.2 DISAPPLICATION OF CONFIDENTIALITY PROVISIONS
WTSS shall use all reasonable endeavours to prevent any disclosure
referred to in Clause 10.1 (Confidentiality of information) provided
however that the provisions of Clause 10.1 shall not apply:
10.2.1 to the disclosure of any information to any person insofar as
such disclosure is expressly permitted by this Agreement;
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10.2.2 to the disclosure of any information already known to the
recipient (otherwise than as a result of a breach of Clause
10.1)
10.2.3 to the disclosure of any information with the consent of each
Company;
10.2.4 to the disclosure of any information which is or becomes public
knowledge otherwise than as a result of the conduct of WTSS;
10.2.5 to the extent that WTSS is required to disclose any information
pursuant to any Requirement of Law or any Regulatory Direction;
10.2.6 to the extent that WTSS needs to disclose any information to any
of its employees provided that before any such disclosure WTSS
shall make the relevant employees aware of its obligations of
confidentiality under this Agreement and shall at all times
procure compliance with such obligations by such employees;
10.2.7 to the disclosure of any information to professional advisers
who receive the same under a duty of confidentiality; or
10.2.8 to the disclosure of any information disclosed to an Agent or a
prospective successor corporate services provider on the basis
that the recipient will hold such information confidential upon
substantially the same terms as this Clause.
11. TERMINATION
11.1 WTSS or a Company, as the case may be, shall have the right to terminate
this Agreement forthwith by giving notice to the other party if:
11.1.1 such party commits a material breach of any of the terms and/or
conditions of this Agreement and fails to remedy the same within
thirty (30) days (or such other period as shall be agreed
between the parties) of being so required so to do; or
11.1.2 either party enters into Insolvency Proceedings.
11.2 This Agreement shall terminate automatically on the date on which the
liquidation or dissolution of a Company has been completed.
11.3 Upon the delivery of a termination notice, pursuant to Clause 11.1, WTSS
shall use its best endeavours to ensure the effective transfer of its
duties under this Agreement and the transmission of all corporate
documents and information in its possession in connection with a Company
to a newly appointed corporate services provider, and shall procure the
prompt resignation of any Nominated Directors and Nominated Secretaries.
Any termination of this Agreement pursuant to Clause 11.1 shall not take
effect until a successor to WTSS has been appointed.
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12. ASSIGNMENT
A Company may not transfer or assign the benefit of this Agreement other
than to the Note Trustee by way of security pursuant to the Security
Documents.
13. NON-PETITION AND LIMITED RECOURSE
13.1 NO PROCEEDINGS AGAINST THE COMPANY
Only the Note Trustee may pursue the remedies available under the
general law or under the Relevant Documents to enforce the Note Security
and WTSS shall not be entitled to proceed directly against a Company to
enforce the Note Security. In particular, each Company and WTSS agree
and acknowledge that:
13.1.1 WTSS is not entitled, otherwise than as permitted by the
Relevant Documents, to direct the Note Trustee to enforce the
Note Security or take any proceedings against a Company to
enforce the Note Security;
13.1.2 WTSS shall not have the right to join any person in taking any
steps against a Company for the purposes of obtaining payment of
any amount due from such Company;
13.1.3 until the date falling two years after the Final Discharge Date
neither WTSS nor any person on its behalf shall initiate or join
an person in initiating any Insolvency Proceedings in relation
to a Company; and
13.1.4 WTSS shall not be entitled to take or join in the taking of any
steps or proceedings which would result in the priority of
payments as specified in the relevant Note Trust Deed Supplement
(prior to any Enforcement Notice) and in the Conditions (after
any Enforcement Notice) not being observed.
13.2 LIMITED RECOURSE
WTSS agrees with each Company that:
13.2.1 notwithstanding any other provisions of this Agreement or any
relevant Documents, all obligations of each Company to WTSS are
limited in recourse as set out below;
13.2.2 it will have a claim only in respect of the Secured Property and
will not have any claim, by operation of law or otherwise,
against, or recourse to any of each Company's other assets or
its contributed capital;
13.2.3 sums payable to WTSS in respect of each Company's obligations
shall be limited to the lesser of (a) the aggregate amount of
all sums due and payable to WTSS and (b) the aggregate amounts
received, realised or otherwise recovered by or for the account
of each Company in respect of the Secured Property whether
pursuant to enforcement of the Note Security or otherwise, net
of any sums which are payable by each Company in accordance with
the priority of payments as specified in the relevant Note Trust
Deed Supplement (prior to any Enforcement Notice) and in the
Conditions (after any Enforcement Notice) in priority to or pari
passu with the sums payable to WTSS; and
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13.2.4 upon the Note Trustee giving written notice to WTSS that it has
determined in its sole opinion, and the Servicer having
certified to the Note Trustee, that there is no reasonable
likelihood of there being any further realisations in respect of
the Secured Property (whether arising from an enforcement of the
Note Security or otherwise) which would be available to pay
unpaid amounts outstanding under this Agreement, WTSS shall have
no further claim against a Company in respect of such unpaid
amounts and such unpaid amounts shall be discharged in full.
14. OBLIGATIONS AS CORPORATE OBLIGATIONS
14.1 NO RECOURSE AGAINST SHAREHOLDERS AND OTHERS
Each Company shall have no recourse against any shareholder, officer,
agent, employee or director of WTSS in his capacity as such, by any
proceedings or otherwise, in respect of any obligation, covenant, or
agreement of a Company (acting in any capacity whatsoever) contained in
this Agreement, any Relevant Document or otherwise.
14.2 CORPORATE OBLIGATIONS
It is expressly agreed and understood that this Agreement is a
corporate obligation of the Company and WTSS.
14.3 NO PERSONAL LIABILITY
No personal liability shall attach to or be incurred by any shareholder,
officer, agent, employee or director of a Company or WTSS in his
capacity as such, under or by reason of any of the obligations,
covenants or agreements of a Company and WTSS contained in this
Agreement or implied from this Agreement and any and all personal
liability of every such shareholder, officer, agent, employee or
director for breaches by a Company or WTSS of any such obligations,
covenants or agreements, either at law or by statute or constitution, is
hereby expressly waived by each Company and WTSS as a condition of and
consideration for the execution of this Agreement.
15. RIGHTS OF THIRD PARTIES
Except as provided for in this clause and in clauses 14.1, 14.3 and 22 a
person who is not a party to this Agreement has no right under the
Contract (Rights of Third Parties) Xxx 0000 to enforce any term of this
Agreement but this does not affect any right or remedy of a third party,
which exists or is available apart from that Act.
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16. FURTHER ASSURANCE
Each Company and WTSS agree that they will co-operate fully to do all
such further acts and things and execute any further documents as may be
necessary or desirable to give full effect to the arrangements
contemplated by this Agreement.
17. VARIATION
A variation of this Agreement is valid only if it is agreed in writing
by or on behalf of each of the parties hereto.
18. EXERCISE AND RIGHTS AND REMEDIES
18.1 NO WAIVER
A failure to exercise or delay in exercising a right or remedy provided
by this Agreement 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 in this Agreement or by law
prevents further exercise of the rights or remedy or the exercise of
another right or remedy.
18.2 RIGHTS AND REMEDIES CUMULATIVE
Except where this Agreement specifically provides otherwise, the rights
and remedies contained in this Agreement are cumulative and not
exclusive of rights or remedies provided by law.
19. NOTICES
19.1 Unless otherwise stated herein, each communication or notice to be made
hereunder shall be made in writing and may be made by fax or letter in
accordance with the terms of the Master Framework Agreement.
19.2 NOTICE DETAILS
Notice hereunder shall be sent as follows:
19.2.1 if to Holdings and/or the Issuer to it at:
Address: c/o Wilmington Trust SP Services (London) Limited
Tower 42, (Level 11)
00 Xxx Xxxxx Xxxxxx
Xxxxxx XX0X 0XX
Tel: x00 00 0000 0000
Fax: x00 00 0000 0000
Attention: The Secretary
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19.2.2 if to WTSS to it at:
Address: Wilmington Trust SP Services (London) Limited
Tower 42, Xxxxx 00
International Financial Centre
00 Xxx Xxxxx Xxxxxx
Xxxxxx XX0X 0XX
Tel: x00 00 0000 0000
Fax: x00 00 0000 0000
Attention: The Directors
20. PARTIAL INVALIDITY
The invalidity, illegality or unenforceability of a provision of this
Agreement does not affect or impair the continuation in force or the
remained of this Agreement.
21. FORCE MAJEURE
21.1 If either party is prevented, hindered or delayed from or in performing
any of its obligations under this Agreement by a Force Majeure Event
then:
21.1.1 that party's obligations under this Agreement shall be suspended
for so long as the Force Majeure Event continues and to the
extent that that party is so prevented, hindered or delayed;
21.1.2 as soon as reasonably possible after commencement of the Force
Majeure Event that party shall notify the other party in writing
of the occurrence of the Force Majeure Event, the date of
commencement of the Force Majeure Event and the effects of the
Force Majeure event on its ability to perform its obligations
under this Agreement;
21.1.3 if that party fails to give the notice referred to in Clause
21.1.2 it shall forfeit its rights under Clause 21.1.1;
21.1.4 that party shall use all reasonable efforts to mitigate the
effects of the Force Majeure event upon the performance of its
obligations under this Agreement; and
21.1.5 as soon as reasonably possible after the cessation of the Force
Majeure Event that party shall notify the other party in writing
of the cessation of the Force Majeure Event and shall resume
performance of its obligations under this Agreement.
21.2 If the Force Majeure Event continues for more than six months after the
commencement of the Force Majeure Event either party may terminate this
Agreement by giving not less than 30 days notice in writing to the other
party and, in such circumstances, the provisions of Clause 11.3 shall
not be effective.
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22. NO RESTRICTIONS
Nothing in this Agreement shall limit or restrict the right of any
director, officer or employee of WTSS or any director, officer, employee
or partner of any of its subsidiaries or its affiliates to engage in any
other business or to devote his time and attention to the management or
other aspects of any other business, whether of a similar or dissimilar
nature, nor to limit or restrict the right of WTSS or of any of its
subsidiaries or affiliates to engage in any other business or to render
the services of any kind to any other corporation, firm, individual or
association.
23. COUNTERPARTS
This Agreement may be executed in a number of counterparts, all of which
taken together shall constitute one and the same instrument.
24. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the
laws of England.
25. JURISDICTION
25.1 ENGLISH COURTS
The courts of England have exclusive jurisdiction to settle any dispute
arising out of or in connection with this Agreement, including a dispute
regarding the existence, validity or termination of this Agreement or
the consequences of its nullity.
25.2 CONVENIENT FORUM
Each Company and WTSS 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.
25.3 SERVICE OF PROCESS
Each Company and WTSS agree that the documents which start any suit,
action or proceedings and any other documents required to be served in
relation to such suit, action or proceedings may be served on it by
being delivered to its address for notice specified in Clause 19.
26. EXECUTION
The parties have executed this Agreement on the date stated at the
beginning of this Agreement.
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EXECUTION PAGE
Signed on behalf of )
WILMINGTON TRUST SP ) XXXXXX XXXXXXXXX
SERVICES (LONDON) LIMITED )
Signed on behalf of )
TURQUOISE HOLDINGS LIMITED ) XXXX XXXXXX
Director
Signed on behalf of )
TURQUOISE CARD BACKED ) XXXX XXXXXX
SECURITIES PLC ) Director
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