EXHIBIT 4.11
CONFORMED COPY
Dated 16 NOVEMBER, 2005
ARRAN FUNDING LIMITED
AND
MOURANT & CO. LIMITED
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CORPORATE ADMINISTRATION AGREEMENT
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[GRAPHIC]
MOURANT INTERNATIONAL FINANCE ADMINISTRATION
XX Xxx 00, 00 Xxxxxxxxx Xxxxxx, Xx Xxxxxx, Xxxxxx XX0 0XX, Channel Islands
Tel: 00000 000 000 Fax: 00000 000 000
THIS AGREEMENT is made the 16th day of November, 2005.
BETWEEN
(1) ARRAN FUNDING LIMITED whose registered office is at 00 Xxxxxxxxx Xxxxxx,
Xx. Xxxxxx, Xxxxxx XX0 0XX, Channel Islands (the "COMPANY"); and
(2) MOURANT & CO. LIMITED whose registered office is at 00 Xxxxxxxxx Xxxxxx,
Xx. Xxxxxx, Xxxxxx XX0 0XX, Channel Islands (the "ADMINISTRATOR").
WHEREAS
(A) The Company has been established in connection with a credit card
receivables securitisation programme and intends to issue notes in series
to fund the purchase of limited recourse loan notes which will in turn be
issued to fund the purchase of credit card receivables (the "BUSINESS OF
THE COMPANY").
(B) The Company has requested the Administrator to provide certain
administrative and secretarial services (the "ADMINISTRATIVE SERVICES")
to the Company upon the terms set out in this Agreement and the
Administrator is willing to provide such services to the Company upon
such terms.
NOW IT IS HEREBY AGREED as follows:-
1. Interpretation
1.1 Terms used herein and not otherwise defined herein shall have the
meanings ascribed to them in the Articles of Association of the
Company as in full force from time to time.
1.2 "ASSOCIATE" shall mean any corporation which in relation to the
person concerned (being a corporation) is a holding company or a
subsidiary of any such holding company or a corporation (or a
subsidiary of a corporation) at least one-fifth of the issued
ordinary share capital of which is beneficially owned by the
person concerned or an associate thereof under the preceding part
of this definition. Where the person concerned is an individual
or firm or other unincorporated body the expression "ASSOCIATE"
shall mean and include any corporation directly or indirectly
controlled by such person.
"BOARD" shall mean the board of directors of the Company or any
duly authorised committee thereof.
"DOCUMENTS" shall include, without limitation, a Base Prospectus
and form of Prospectus Supplement, Agency Agreement, Arran Funding
Master Framework Agreement, Expenses Loan Agreement, Arran Funding
Note Trust Deed, Jersey Bank Account Operating Agreement, Issuer
Distribution Account Bank Agreement, Dealer Agreement, Final
Terms, and all such other agreements, documents and undertakings
as shall be necessary in connection with the Business of the
Company.
1.3 Words importing the singular shall include the plural and the
masculine gender shall include the feminine and the neuter and
vice versa in each case and words importing persons shall include
bodies of persons whether corporate or unincorporate.
1.4 This Agreement shall come into effect on the day and year first
before written and shall replace every prior agreement of the
parties hereto with regard to the subject matter hereof but
without prejudice to the respective rights of the parties accrued
under such agreements prior to the effective date of this
Agreement.
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2. ADMINISTRATOR'S TERMS OF BUSINESS
2.1 The Administrator shall provide the Administrative Services to the
Company in accordance with the Mourant Terms of Business, as may
be amended from time to time, set out at the Appendix hereto (the
"TERMS OF BUSINESS").
2.2 In the event of a conflict between the terms of this Agreement and
the Terms of Business, the Terms of Business shall prevail at all
times.
3. APPOINTMENT, AUTHORITIES AND RESTRICTIONS
The Administrator in carrying out its functions hereunder will have
regard as appropriate to the provisions of:-
(a) the Memorandum and Articles of Association of the Company;
(b) the Documents; and
(c) such other relevant agreements and side letters as the Company may
from time to time enter into (of which the Company undertakes to
let the Administrator have copies).
4. ADMINISTRATIVE SERVICES
The Administrator shall provide the following services to the Company in
Jersey:-
(a) a registered office and administrative office for the Company;
(b) the services of three individuals who are residents of the Island
of Jersey for tax purposes who will accept office as directors of
the Company. The Administrator shall procure that such directors
shall waive any entitlement to fees from the Company for so
acting;
(c) the services of a secretary to the Company to perform all the
duties properly required of a secretary by the directors of the
Company, the Memorandum and Articles of Association of the Company
and the Companies (Jersey) Law 1991;
(d) the arrangement of meetings of directors and shareholders of the
Company on the Island of Jersey and the preparation of minutes of
such meetings;
(e) the arrangement of annual meetings and any other meetings of the
shareholders of the Company;
(f) the maintenance of the statutory books of the Company (including
the registers of the members, directors and secretary of the
Company) and any other books and records required by law or
ordinarily required by a Jersey company and the preparation and
issue of share certificates;
(g) the preparation and submission of annual returns of the Company
and procuring that the Company pays the fee required to be paid to
the Jersey authorities in connection therewith;
(h) the preparation and submission of any other documents required by
law to be prepared or filed by the Company;
(i) the preparation of interim accounts, if required, and annual
accounts of the Company;
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(j) the safekeeping of the common seal of the Company and arranging
for sealing of documents as authorised by the directors of the
Company;
(k) obtaining exempt status or if exempt status no longer exists or is
not applicable to the Company obtaining such other status as may
be applicable to the Company under the provisions of the Income
Tax (Jersey) Law 1961, as amended or such other law as from time
to time may be in force in relation to taxation of Jersey
companies and procuring that the Company pays any fee required in
order to obtain such status;
(l) the provision of nominees to hold the issued shares of the
Company; and
(m) the execution of all such agreements, documents and undertakings
as shall be necessary in connection with the Business of the
Company.
5. THE ADMINISTRATOR'S DUTIES
5.1 The Administrator shall at all times act in accordance with all
reasonable and proper directions, orders and instructions given by
the Board or any person they believe to be duly authorised by the
Board in all matters concerning the Company and the Business of
the Company. Such instructions may be communicated orally or in
writing or by electronic means or otherwise and with or without
authentication.
5.2 The Administrator shall not knowingly do or knowingly omit to do
anything which would constitute a breach of any provisions of the
Articles of Association of the Company or of any legally binding
restrictions applying to the Company including but not limited to
any legally binding restrictions applying to the Company as a
consequence of it being a party to the Documents.
5.3 The Administrator shall at all times exercise and perform the
powers, rights and duties conferred upon it by or under this
Agreement (whether by any supplemental agreement, or otherwise by
the Board) outside the United Kingdom and, without prejudice to
the generality of the foregoing, the Administrator shall:-
(a) hold outside the United Kingdom all meetings at which such
powers, rights and duties are exercised or performed; and
(b) take decisions and give directions only outside the United
Kingdom.
6. DELEGATION
The Administrator shall be entitled to delegate the whole or any part of
its duties hereunder to any Associate of the Administrator, or to any
other person or corporation with the prior written consent of the Company
which consent shall have been sought by notice in writing delivered to
the Company at least three months before the date on which such
delegation is to come into effect.
7. INFORMATION AND DATA REGARDING THE COMPANY
7.1 The Administrator shall be entitled to rely, without further
enquiry, on all and any data of whatever nature the same may be
received from the Company from time to time and further shall not
incur any liability whatsoever for any loss arising by reason of
such reliance on the aforesaid data.
7.2 After termination of this Agreement the Administrator shall
deliver up to the Company, within 2 working days of the Company's
request therefor, all such information and data, or, at the
request of the Company, destroy the same.
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7.3 All and any information relevant to the Company which is provided
by the Administrator pursuant to the Administrative Services may
be disclosed to rating agencies, transaction parties and such
government agencies as may be required by any applicable laws.
Disclosure of information to any other persons shall be made only
with the prior written consent of the Administrator.
8. REMUNERATION
8.1 The Company shall remunerate the Administrator in advance in
accordance with the fees set out in the Schedule hereto for the
Administrative Services subject to review at the end of the first
year and every two years thereafter, commencing on the date
hereof.
8.2 Unless otherwise agreed all statutory expenses and other
disbursements shall be paid in advance.
8.3 In addition to the scale of fees set out in the Schedule, the
Administrator, its officers, employees, and any person to whom it
has delegated its duties hereunder shall be entitled to
reimbursement of all out of pocket expenses reasonably incurred by
them in the proper performance of the Administrative Services.
9. LIABILITY OF THE ADMINISTRATOR
Without prejudice to the generality of the Terms of Business the
Administrator shall not incur any liability whatsoever arising from:-
(a) the negligence or fraud of any delegate or agent appointed or
employed with the consent, or on the instructions of, the Board;
or
(b) anything done or omitted in conformity with any advice given or
purporting to have been given by any agent appointed or employed
in connection with the affairs of the Company with the consent of
the Board.
10. SCOPE OF OBLIGATIONS
10.1 The Administrator, its directors, officers, employees, agents and
nominees shall not be obliged to act in any manner which may be
contrary to law.
10.2 Notwithstanding the provisions of clause 9.4 of the Terms of
Business, where the Company is required to undertake certain
actions within a specific timeframe pursuant to a Document the
Administrator shall act upon all such proper instructions as it
receives to ensure that the Administrative Services or any of them
are completed in accordance with such proper instructions within
the specified timeframe.
10.3 The Administrator's obligations hereunder to procure that the
Company make all payments required of it shall be subject to the
availability of the Company's funds to do so and in no
circumstances shall the Administrator be required to make payments
in connection with the Business of the Company out of the
Administrator's own funds.
10.4 The Administrator is not authorised to take any investment
decisions and shall not be responsible for any investment
management function of the Company.
10.5 The Administrator shall not be responsible for making applications
to list any shares in the Company or any other securities in
connection with the Business of the Company on any stock exchange
or for making any filings or notifications or taking any other
action that may be required from time to time in connection with
any listed shares or securities.
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11. NON-PETITION
11.1 Notwithstanding any of the provisions of this Agreement the
Administrator hereby agrees that, if the net assets of the Company
are less than the aggregate liabilities of the Company, the
obligations of the Company to the Administrator will be limited to
such net assets at that time.
11.2 The Administrator agrees that neither it, nor any other person
acting on its behalf, shall be entitled at any time to institute
against the Company, or join in any institution against the
Company of, any bankruptcy, reorganisation, arrangement,
insolvency, winding up or liquidation proceedings or other
proceedings under any applicable bankruptcy or similar law in
connection with any obligations of the Company owed to the
Administrator under this Agreement or any of the Document, save
for lodging a claim in the liquidation of the Company which is
initiated by another party or taking proceedings to obtain a
declaration or judgment as to the obligations of the Company in
relation thereto.
12. TERMINATION
12.1 Subject to the Terms of Business the appointment of the
Administrator hereunder shall terminate:-
(a) upon the expiration of 90 days notice in writing given by
the Administrator to the Company or by the Company to the
Administrator and a substitute administrator shall be
appointed by the Company on terms substantially the same as
those set out in this Agreement and such appointment will be
effective not later than the date of the termination of the
Administrator's appointment hereunder provided always that
the services to be provided under clause 4(b) hereof shall
continue in full force until the date that additional
directors are appointed to the Board notwithstanding that
all other services to be provided hereunder by the
Administrator shall be terminated;
(b) immediately if:
(i) either party has broken or is in breach of any of the
terms of this Agreement and shall not have remedied
such breach within 30 days after service of notice
requiring the same to be remedied; or
(ii) either party is declared en desastre or has
committed any act or omission indicative of
insolvency.
12.2 Termination of the appointment of the Administrator under this
Clause shall be without prejudice to the rights of any party in
respect of any antecedent claim against or breach of the terms of
this Agreement by the Administrator.
13. NOTICES
Any communication to be made under or in connection with this Agreement
shall be made in accordance with the Terms of Business and as set out
below.
The address and fax number (and the department or officer, if any, for
whose attention the communication is to be made) if each party for any
communication or document to be made or delivered under or in connection
with this Agreement is:
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to the Administrator:
Address: Mourant & Co. Limited
X.X. Xxx 00
00 Xxxxxxxxx Xxxxxx
St. Helier
JE4 8PX
Attention: MIFA J CORP 6
Fax: (x 00) 0000 000000
to the Company:
Address: Mourant & Co. Limited
X.X. Xxx 00
00 Xxxxxxxxx Xxxxxx
St. Helier
JE4 8PX
Attention: MIFA J CORP 6
Fax: (x 00) 0000 000000
or any substitute address, fax number or department or officer as each
party may notify to the other by not less than 5 days notice.
Any communication or document to be made or delivered to the
Administrator will be effective only when actually received by the
Administrator and then only if it is expressly marked for the attention
of the department or officer identified above (or any substitute
department or officer as the Administrator shall specify for this
purpose).
14. NON-SOLICITATION
Neither the Company nor any person employed by or connected to the
Company, during the continuance of this agreement and for a period of one
year following the termination of the appointment of the Administrator,
howsoever caused, shall directly or indirectly approach, solicit or
otherwise endeavour to remove any employee from the employment of the
Administrator or any of its Associates save with the prior agreement of
the Administrator.
15. COUNTERPARTS
This Agreement may be signed in several counterparts which, taken
together, shall constitute one and the same Agreement.
16. GOVERNING LAW
This Agreement shall be governed and construed in accordance with the
laws of the Island of Jersey and the parties hereto agree to submit to
the jurisdiction of the courts of the Island of Jersey in connection
herewith.
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be duly
executed this day and year first above written.
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APPENDIX
MOURANT MASTER TERMS OF BUSINESS
Words and phrases used in these Terms of Business shall have the meanings given
and be interpreted in accordance with Part 5 hereof.
PART 1: COSTS
1. FEES, EXPENSES AND DISBURSEMENTS
1.1 Unless otherwise agreed in writing by us or where a scale or quoted fee
applies, our fees will be calculated by reference to the value of our
work as determined by us. In calculating that value, we will take
account of the time spent by our personnel at our charge-out rates in
force from time to time, seniority of the personnel involved, the
complexity of the matter, the degree of skill required, the level of
responsibility, the degree of urgency and any other material factors. We
will provide an estimate (see section 2 below) of our expected fees
wherever possible, upon request. We shall also be entitled to recover
payment of any expenses or disbursements incurred by us.
1.2 Time spent by our personnel may include advising, attending on you and
others, considering documentation, entering into correspondence,
research, engaging other advisors, telephone calls, travelling and
waiting time. Our fees may also include any time spent by our personnel
or expenses incurred by us as a result of or in connection with any
investigation or enquiry by any governmental, regulatory, policing,
judicial, revenue or other authority, officer or inspector (whether or
not having force of law in Jersey) or any audit or internal enquiry,
directly or indirectly concerning or made in relation to you.
1.3 Unless otherwise agreed in writing by us, we may adopt such basis of
valuation as we in our discretion reasonably think fit for the purposes
of calculating our remuneration.
1.4 We shall be entitled to retain any benefit (whether direct or indirect)
and including but not limited to all commissions, fees or other
remuneration obtained:
1.4.1 on any purchase or sale of investments;
1.4.2 by reason of us also acting as manager, trustee, director or
officer of or adviser to any company, investment fund or scheme
shares or units of which are comprised in the assets of the
Managed Entity, under any banking, investment advisory or other
arrangements entered into on behalf of such Managed Entity;
1.4.3 on the giving of legal advice or other Services to or for you or
on your behalf.
1.5 Where we undertake, as a result of any error or omission, to restore you
to the position you would have been in if the error or omission had not
occurred and accordingly we may be responsible for or suffer any loss
arising as a result, we will similarly be entitled to retain any profit
or gain arising as a result of giving such undertaking.
2. BILLING FREQUENCY
2.1 Our bills will normally be issued at 6 monthly intervals or, on
completion of, or at a natural break in the course of the relevant matter
unless agreement is reached with you in writing. We may also ask for
payments on account of anticipated fees, expenses and disbursements.
3. TERMS OF PAYMENT
3.1 Our bills are payable immediately upon presentation. After 40 days from
the date of issue, we will be entitled to charge interest on the amount
outstanding at the rate of 1% per month or part thereof, compounded
annually, and shall be under no obligation to carry out any further work
for you on any matter
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or to pay any sums on your behalf or on behalf of the Managed Entity until
all outstanding amounts have been paid.
4. AVAILABLE FUNDS
4.1 Unless we have agreed otherwise, where we have received monies on account
of our fees, expenses and disbursements, then we reserve the right to
deduct our fees, disbursements or expenses from those funds and we will
not be required to obtain your prior approval to this.
5. SUFFICIENT FUNDS
5.1 The Managed Entity shall be kept at all times in funds sufficient to
honour its liabilities as and when they become due.
6. GUARANTEE
6.1 Where another party might agree to pay your costs, or where some costs
may be recoverable in litigation, or from your insurers, the
responsibility to meet our fees, expenses and disbursements in a timely
fashion nevertheless remains yours regardless of any arrangements with,
or rights against other parties or any court order or anticipated order.
6.2 You guarantee the due payment of all fees, expenses and disbursements in
connection with the Services and unless otherwise agreed there shall be
no requirement that recourse be had to the assets of any other person
before any claim be enforced under such guarantee.
6.3 Guarantees and indemnities in these Terms of Business are given in every
case as principal obligor and you abandon any right you may have or
acquire by virtue of the "droit de division" or the "droit de
discussion".
PART 2: MOURANT SERVICES
7. OUR SERVICES
7.1 We provide trustee and corporate administration services in accordance
with specific requirements agreed with you from time to time.
8. SPECIFIC SERVICES
8.1 We offer other specific services such as Jersey legal advice,
nomineeships, financial and money Services, debt collection and service
of process agency. We will act in such a capacity only under specific
additional terms agreed in advance in writing which will apply in
addition to or instead of the Terms of Business set out herein.
8.2 We do not offer or provide investment advice or advice on the taxation
(other than Jersey taxation) or other financial consequences which might
be caused or suffered, directly or indirectly, as a result of any
transaction in which we are involved on your behalf.
8.3 It is your responsibility in relation to the Services, to provide us with
complete, accurate and timely information and documentation when
requested and to carry out any obligations ascribed to or undertaken by
you or others under your control.
9. INSTRUCTIONS AND COMMUNICATIONS
9.1 You hereby authorise us to act without enquiry on instructions, requests
or advice from you or any person that we believe to be duly authorised by
you whether in relation to the Managed Entity and its affairs or
otherwise. Such instructions, requests or advice may be communicated
orally or in writing or by electronic means or otherwise and with or
without authentication.
9.2 We shall not incur any liability or be responsible for any failure on our
part to comply wholly or partly with any instruction, request or advice
or for any non-receipt thereof or any errors or ambiguity therein or any
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lack of authority on the part of the person giving or making the same
where such instruction, request or advice is not in writing and, where
such instruction, request or advice is in writing, we shall not be so
liable or responsible in the absence of gross negligence on our part.
9.3 We will not incur any liability for any loss arising by reason of a
failure of a communication to us or from us, howsoever transmitted or
dispatched, or for any interference or interception made of any
communication in transit, or if transmitted by unauthorised persons
whether or not resulting from an act or omission on our part.
9.4 We shall deal with and act upon proper instructions in a reasonably
timely manner and undertake to use reasonable endeavours to do so, but do
not undertake to act on instructions immediately or on the same or next
business day or to meet any specific deadline (unless otherwise agreed in
writing) and shall not incur any liability for any loss arising by reason
of the length of time taken to so act upon instructions. We are not and
do not hold ourselves out to provide a dealing service in relation to any
property or assets held by us in any capacity from time to time.
10. INFORMATION
10.1 All information regarding your business and affairs will be regarded as,
and kept confidential by, us at all times save for the purpose of
instructing and dealing with other advisers acting on your behalf, or if
it is already in the public domain, or where you instruct us to disclose
or consent to disclosure by us of information, specifically or by
implication, to a third party. In certain circumstances however we may
be obliged or consider it necessary or desirable to give evidence and
produce such information to any governmental, regulatory, policing,
judicial, revenue or other authority, officer or inspector (whether in
Jersey or elsewhere) in connection with your affairs and you hereby
authorise us to make such disclosures in such circumstances.
10.2 We shall not be obliged to disclose to you any confidential or other
information obtained by us at any time whilst acting in any capacity
other than in the course of acting on your behalf.
10.3 We store completed files for a period of ten years after which time we
reserve the right to destroy them.
10.4 All information and data held by us on any computer system is solely our
property and for our sole use and neither you nor or anyone else acting
for you or on your behalf shall have any control over that information or
data. We have the right to retain ownership and keep copies of all such
information and data.
11. INTELLECTUAL PROPERTY RIGHTS
11.1 We retain all copyright and other intellectual property rights in
everything developed, designed or created by us or any predecessor firm
either before or during the course of carrying out the Services,
including systems, methodologies, software, know-how, and working papers.
We also retain all copyright and other intellectual property rights in
all reports, written advice or other materials provided by us to you.
12. SAFE CUSTODY
12.1 We will keep all such deeds and documents which we consider appropriate,
or where we are requested by you to do so, in our safe custody
facilities. These facilities are carefully regulated and controlled and
designed to limit the possibility of unauthorised access or damage by
fire. We do not accept items of value such as jewellery and bearer
certificates into our safe custody facilities. We accept no
responsibility for any deeds or documents held in safe custody that are
damaged or lost as a result of theft, fire or water damage, in the
absence of gross negligence.
13. THIRD PARTIES
13.1 If we instruct any adviser, agent or other contractor to act on your
behalf we will exercise due care in selecting such person. We will not
be responsible for any act or omission on the part of such person, by
itself, its servants, agents or by others engaged by that person to act
on your behalf.
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13.2 No responsibility is accepted by us in respect of any act or omission of
any third party placing reliance on the performance of the Services for
you or on your behalf or on the advice given by us to you.
13.3 All information and advice of whatever nature given by us to you is for
your sole use and shall not be disclosed or made available to third
parties without our prior consent.
13.4 No rights or obligations shall accrue to or be imposed upon any person
under these Terms of Business who is not a party hereto or expressly
referred to herein as having such rights or obligations. The application
of any legislation giving to or conferring on third parties contractual
or other rights in connection with the Services is hereby excluded.
14. YOUR MONEY
14.1 Your money will be maintained at all times separate from our own funds.
14.2 To the extent that tax has to be deducted from interest earned on funds
held on your behalf we will account to the tax authorities for the tax
deducted. You are responsible for seeking your own tax advice in this
regard.
14.3 On receipt of any monies we must be satisfied as to the source of these
funds. If we have any doubts as to the source of funds we may be bound
by law to notify the relevant authorities.
14.4 You will not request us to take or refrain from taking any action
whatsoever in relation to funds or assets or documents of any nature
which could in our sole opinion result in a contravention of any law or
regulation in force from time to time in Jersey or in any other place
whatsoever. We reserve the right not to comply with any request which in
our sole opinion could potentially result in any such contravention or
which in our sole opinion could result in any damage to our reputation or
good standing.
15. TRANSFERS AND TRANSMISSIONS
15.1 All transfers and transmissions of your monies, assets or documents are
made at your risk and we shall not be liable for any loss, damage or
delays howsoever caused which are not directly caused by our gross
negligence.
16. ABORTIVE WORK AND TERMINATION OF SERVICES
16.1 If any Services undertaken for you are terminated, we will charge for all
fees incurred up to the point the matter is terminated together with all
expenses or disbursements paid on your behalf. In such circumstances we
will also charge for fees incurred and any disbursements or expenses
connected or associated with the orderly termination or the transfer of
the Managed Entity to another professional service provider, if
applicable.
16.2 All and any obligation to provide the Services shall cease and we may
resign from any office held by us in connection with the provision of the
Services forthwith:
16.2.1 if you fail to observe any of these Terms of Business; or
16.2.2 if we become aware that you are or may become subject in any part
of the world to investigation by any judicial or regulatory
authority or criminal proceedings are instituted or threatened
against you or in relation to you; or
16.2.3 if we give notice to you to that effect;
and alternative facilities for the Managed Entity shall be provided or
arranged by you.
16.3 On the termination of the whole or any part of the Services, we shall be
entitled to make such retentions and receive such indemnities as we may
require in respect of any actual or contingent liabilities.
17. FAILURE TO MAKE PAYMENTS OR PROVIDE INSTRUCTIONS
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17.1 In the event that:
17.1.1 any demand is made against the Managed Entity for payment of any
sum due including but not limited to any taxes, duties, fees or
other governmental or state impositions and such payment has not
yet been made; or
17.1.2 we require instructions from you and have been unable to obtain
instructions which in our absolute discretion we consider adequate
and proper;
then, subject as hereinafter provided, we may proceed in any one or more
of the ways described in the following paragraph.
17.2 In the events described above, we may:
17.2.1 take no further action on a particular matter; or
17.2.2 take no further action in relation to the Managed Entity;
provided that we shall have given to you notice that the provisions of
this paragraph shall apply and unless within the period stated in such
notice you have taken such action as shall therein be specified.
17.3 No liability shall attach to us in respect of or arising out of any
action or inaction which is in accordance with the provisions of the
above paragraph.
18. ALIENATION OF INTEREST
18.1 You shall notify us before alienating, assigning, selling, pledging or
otherwise disposing of or encumbering your interest in any Managed Entity
or any part thereof.
19. PROTECTION OF MANAGED ENTITY'S BUSINESS
19.1 We are authorised to take any steps which in our sole discretion we think
fit to protect the business or assets of any Managed Entity and to engage
such advisers including the Firm as we in our discretion consider
appropriate and any expenses incurred as a result shall be borne by such
Managed Entity.
20. DISCRETIONS
20.1 Nothing in these Terms of Business shall limit the manner in which we
will exercise discretionary powers vested in us by you or for your
benefit or otherwise in connection with the Services.
21. COMPLAINTS
22. In case you are not satisfied with the Services provided by us, we have
established a complaints procedure. Please write to us, detailing your
complaint, which will then be thoroughly investigated.
23. RECORDING TELEPHONE CONVERSATIONS
23.1 We may from time to time and at any time make and keep a sound recording
of any telephone conversations. Such recordings shall at all times remain
our sole property and we shall have the authority to deliver copies or
transcripts of such recordings to any court or regulatory authority of
competent jurisdiction as we see fit and you hereby waive any objection
to the use of any such recordings as evidence of any such telephone
conversations.
PART 3: LIABILITY
24. OUR LIABILITY
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24.1 By engaging us to carry out the Services on your behalf, you agree that
any claim of any sort whatsoever arising out of or in connection with
this engagement shall be brought only against the party with which you
contract and that no claims in respect of our engagement will be brought
personally against any other persons involved in performance of the
Services, whether actual or deemed servants or agents of us or not, or
any partner or other personnel of Mourant.
24.2 We shall not be liable for and you undertake at all times to hold us
harmless and to indemnify us to the greatest extent permitted by law from
and against all losses, actions, suits, proceedings, claims, demands,
damages, costs, charges, expenses and liabilities (or actions,
investigations or other proceedings in respect thereof) whatsoever which
may arise or accrue or be taken commenced made or sought from or against
us in connection with the Managed Entity or arising from the provision of
the Services or any of them and will reimburse us for all costs and
expenses (including legal and other professional fees) which are incurred
by us in connection with investigating or defending any such claim or
proceeding, other than liabilities arising from fraud or gross
negligence. This indemnity shall continue in force without limit in
time, whether or not we are continuing to provide the Services and
without prejudice to any other indemnity given in our favour.
24.3 Our liability in respect of any claims of any sort whatsoever (including
interest and costs) for breach of contract, tort, breach of duty or fault
or negligence or otherwise whatsoever arising out of or in connection
with the Managed Entity or the Services shall be limited in total to
{pound-sterling}2 million (or, if greater, the total amount of the fees
charged by us to you in respect of the Services), unless otherwise agreed
in writing with you. This provision shall have no application to any
liability which cannot lawfully be excluded or limited or to liability
arising as a result of fraud on our part.
24.4 Where you comprise more than one party, the limit of our liability will
be divided amongst all such parties.
24.5 Our liability in respect of breach of contract, tort, breach of duty or
fault or negligence or otherwise whatsoever arising out of or in
connection with the Managed Entity or the Services shall be limited to
that proportion of the loss or damage (including interest and costs)
suffered by you, which is ascribed to us by a court of competent
jurisdiction allocating proportionate responsibility to us having regard
to the contribution to the loss or damage in question of any other person
responsible and/or liable to you for such loss or damage. This provision
shall have no application to any liability which cannot lawfully be
excluded or limited or to liability arising as a result of fraud on our
part.
24.6 For the purpose of assessing the contribution to the loss or damage in
question of any other person pursuant to the preceding paragraph, it is
agreed that no account shall be taken of any limit imposed on the amount
of liability of such person by any agreement made before the loss or
damage in question occurred or such person being impecunious or unable to
pay for any other reason.
24.7 You remain responsible for any commercial decisions that you make, and in
taking such decisions regard must be had to the restrictions and scope of
the Services and to the large number of other factors, commercial and
otherwise, of which you and your other advisers are, or should be, aware
from sources other than us and the Services provided by us.
24.8 We shall not be liable for any indirect or consequential economic loss or
damage suffered by you.
24.9 We shall not (unless otherwise agreed in writing) incur any liability
arising by reason of any failure of or lack of availability of our
computer systems or communication systems.
25. YOUR COVENANTS AND UNDERTAKINGS
25.1 You confirm undertake and covenant that:
25.1.1 any asset introduced to the Managed Entity has been lawfully
introduced and is not derived from or otherwise connected with any
illegal activity;
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25.1.2 The Managed Entity will not be engaged or involved directly or
indirectly in any unlawful activity or be used for any unlawful
purpose and you will keep us adequately informed as to all
business to be transacted in the name of or for your account and
you will use your best endeavours to ensure that the Managed
Entity is run in a proper and business-like manner and complies
with all applicable laws and regulations;
25.1.3 you have taken appropriate tax and other advice with regard to the
establishment conduct and use of the Managed Entity;
25.1.4 no instructions given to us will require or involve any unlawful
act or contain any falsehood and all information given will be
accurate and not misleading;
25.1.5 you will not use the Managed Entity in any manner contrary to any
applicable code of dealing in securities;
25.1.6 you shall procure that the Managed Entity complies with all filing
requirements in any applicable jurisdiction and that all taxes and
governmental dues payable by the Managed Entity are discharged;
25.1.7 where the Services include the provision of officers for the
Managed Entity, you will not take any action with regard to the
Managed Entity nor enter into any contract on its behalf without
our consent; and
25.1.8 you shall disclose or procure the disclosure to us, on request, of
any and all information concerning the Managed Entity or its
business.
26. FORCE MAJEURE
26.1 We shall not incur any liability for any failure or delay in the
performance of the obligations under these Terms of Business arising out
of or caused directly or indirectly by circumstances beyond our
reasonable control (including acts of god, earthquakes, fires, floods,
wars, civil or military disturbances, sabotage, terrorism, epidemics,
riots, interruptions, loss or malfunctions of utilities, computers
(hardware or software) or communication services, accidents, labour
disputes, acts of any civil or military authority or governmental
action), provided however that we shall use our best endeavours to resume
performance as soon as reasonably possible.
PART 4: GENERAL
27. CONFLICTS OF INTEREST
27.1 We provide a wide range of services for a large number of clients and may
be in a position where we are providing services to other clients which
you might regard as giving rise to a conflict of interest. Where we
become or are made aware of such circumstances, and where we believe your
interests can be properly safeguarded, we will discuss and agree with you
procedures that we will put in place to preserve confidentiality and
ensure the advice and opinions which you receive from us are independent
but otherwise we may cease to act for you immediately upon giving notice
in writing to you and without any further liability on our part.
27.2 Unless you have specifically retained us to act for you in all matters,
we are not precluded in any other circumstances from acting for another
party in any transaction or litigation with which you are associated.
27.3 Unless otherwise specifically agreed in writing, we maintain the right to
decide on the course to be adopted in the handling of any matter and the
appropriate personnel to undertake the work.
28. WAIVER
28.1 No failure, delay or forbearance by us in the exercise or enforcement of
any rights available to us shall amount to or be deemed to be a waiver of
any such rights.
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29. SEVERABILITY
29.1 Each clause, term or provision of these Terms of Business constitutes a
separate and independent provision of these Terms of Business. If any
clause, term or provision of these Terms of Business is determined by any
court or authority of competent jurisdiction to be void, illegal or
unenforceable, the remaining clauses, terms and provisions shall continue
in full force and effect.
30. NOTICES
30.1 Any notice required to be given hereunder shall be in writing addressed
to the party concerned at its address from time to time notified to the
other for the purpose, failing which the last known usual address of such
party. Any notice:
30.1.1 delivered personally shall be deemed to have been given at the
time of such delivery;
30.1.2 sent by letter post shall be deemed to have been given 7 days
after posting;
30.1.3 sent by airmail letter shall be deemed to have been given 3 days
after posting;
30.1.4 sent by facsimile, e-mail or other electronic means of
communication shall be deemed to have been given at the time of
despatch.
31. USE OF OUR NAME
31.1 Except where required as part of the services, our names, addresses,
telephone, fax numbers, e-mail addresses, logos and website address shall
not (without our prior written consent) be used by you in or on any
notepaper or other documentation or in any advertising material.
32. VARIATION OF THESE TERMS OF BUSINESS
32.1 We may vary these Terms of Business and our scale of fees from time to
time as we think fit by written notice to you.
33. ACCEPTANCE
33.1 These Terms of Business will apply in respect of all Services actually
provided by us, whether or not there shall be in existence any written or
other express acceptance.
34. REGULATORY AUTHORISATION
34.1 Mourant & Co. Limited and certain other Mourant companies and individuals
are regulated under the Financial Services (Jersey) Law 1998. A full
list of the regulated Mourant entities is available on request.
34.2 Mourant Client Treasury Services Limited is registered to carry on
investment business under the Financial Services (Jersey) Law 1998.
35. PROPER LAW
35.1 These Terms of Business and our letter of acceptance of instructions
shall be governed by and construed in accordance with the laws of the
Island of Jersey and you hereby agree to submit to the non-exclusive
jurisdiction of the Jersey courts in connection therewith and further
waive the right to object to an action brought in the Jersey courts on
the basis of an action brought in an inconvenient forum.
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PART 5: INTERPRETATION
36. DEFINITIONS/INTERPRETATION
36.1 The following terms used in these Terms of Business shall, unless the
context indicates otherwise, have the meanings appearing below:
36.1.1 "Appointees"means and includes any person who as part of the
Services shall act as a director or other officer trustee manager
signatory or shareholder of the Managed Entity.
36.1.2 "Employees" means and includes the directors, other officers and
staff of Mourant from time to time and their respective heirs,
personal representatives and successors.
36.1.3 "Managed Entity" means and includes any corporation, company,
partnership, trust, association or other person for or in relation
to which Services are provided.
36.1.4 "Mourant" means and includes the partners from time to time of
Mourant Group, Mourant & Co. Limited, Mourant Holdings Limited,
Hill Street Trustees Limited, Mourant Capital Markets Services
Limited, Mourant Client Treasury Services Limited, the Firms and
their respective subsidiaries and affiliates and heirs, personal
representatives and successors in title.
36.1.5 "Services" includes any acts done or to be done or performed for
you or on your behalf by us.
36.1.6 "the Firms" means the firms of Mourant du Feu & Jeune Jersey and
Mourant du Feu & Jeune London, each of the partners from time to
time of each such firm and their respective heirs, personal
representatives and successors in title.
36.1.7 "we", "us" and "our" shall refer to Mourant, the Firms, the
Employees and the Appointees or any of them, as applicable.
36.1.8 "you" and "your" shall refer to the Managed Entity and the
officers of the Managed Entity or any of them, as applicable.
36.2 Words importing the singular shall include the plural and the masculine
gender shall include the feminine and the neuter and vice versa in each
case and words importing persons shall include bodies of persons whether
corporate or unincorporate.
36.3 Clause headings are inserted for convenience only and shall not affect
the construction or interpretation of these Terms of Business.
Date: August 2004
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SCHEDULE
THE ADMINISTRATOR'S REMUNERATION
The Administrator's remuneration for the provision of the Administrative
Services during the period that it acts as Administrator of the Company on the
terms of this Agreement Administration will be as follows:
SET-UP FEES
A one off set up cost for the establishment of the Programme: {pound-sterling} 2,500.
FIXED ANNUAL FEES
Management fees: provision of directors, company Secretary {pound-sterling} 2,500 p.a.
and registered office
Administration fees to include maintenance of statutory {pound-sterling} 5,000 p.a.
Records, audit process, approving and filing of annual
Accounts and keeping the company in good standing
PER ISSUE FEES
To include all costs relating to each series issue for the {pound-sterling} 10,000
Issuer and the Receivables Trustee
ACTIVITY FEES
Additional administration fees for specific events including but not limited to
SEC filings, updates to documents, transaction amendments, structure
termination etc. will be charged on a time cost basis in accordance with the
Administrator's standard charges from time to time or will be negotiated at the
time of occurrence.
OTHER COSTS
Out of pocket expenses/disbursements incurred in the course of administration
(including but not limited to the prescribed filing fee in relation to the
Company's annual return and, to the extent that it shall be applicable, the
annual exempt company charge payable by the Company pursuant to Article 123A of
the Income Tax (Jersey) Law 1961 (as amended) and such other fees as may be
applicable in relation to Jersey companies).
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SIGNED by: )
For and on behalf of )Xxxxxx Kerhoat
ARRAN FUNDING LIMITED )Director
SIGNED by: )
For and on behalf of )Xxxxxxx Xxxxx
MOURANT & CO. LIMITED )Authorised signatory
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