Exhibit 10.5
XXXXXXXX LIMITED LIABILITY PARTNERSHIP
CHANCE
ARRAN FUNDING LIMITED
as Issuer
and
THE ROYAL BANK OF SCOTLAND INTERNATIONAL LIMITED
as Account Bank
and
THE BANK OF NEW YORK, LONDON BRANCH
as Note Trustee
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ISSUER DISTRIBUTION
ACCOUNT BANK AGREEMENT
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CONTENTS
CLAUSE PAGE
1. Interpretation.........................................................1
2. The Account............................................................3
3. Mandate................................................................3
4. Acknowledgement By The Royal Bank Of Scotland International Limited....4
5. Indemnity..............................................................5
6. Termination And Resignation............................................5
7. Change Of Note Trustee Or Account Bank.................................7
8. Costs..................................................................7
SCHEDULE 1 BANK MANDATE (ARRAN FUNDING LIMITED - ISSUER DISTRIBUTION ACCOUNT)
.................................................................8
THIS AGREEMENT is made on [*]
BETWEEN:
(1) ARRAN FUNDING LIMITED whose registered office is at 00 Xxxxxxxxx Xxxxxx,
Xx. Xxxxxx, Xxxxxx XX0 0XX (the "ISSUER");
(2) THE ROYAL BANK OF SCOTLAND INTERNATIONAL LIMITED whose registered office
is at Royal Bank House, 00 Xxxx Xxxxxx, Xx. Xxxxxx, Xxxxxx XX0 0XX (the
"ACCOUNT BANK"); and
(3) THE BANK OF NEW YORK a New York banking corporation acting through its
London branch located at Xxx Xxxxxx Xxxxxx, Xxxxxx X00 0XX (the "NOTE
TRUSTEE", which expression shall include its successors as Note Trustee
pursuant to the Arran Funding Note Trust Deed).
IT IS HEREBY AGREED AS FOLLOWS:
1. INTERPRETATION
1.1 DEFINITIONS
Unless otherwise defined in this Agreement or the context requires
otherwise, words and expressions used in this Agreement have the
meanings and constructions ascribed to them in the Master Definitions
Schedule set out in Schedule 1 (Master Definitions Schedule) of the
Arran Funding Master Framework Agreement which is dated on or about the
date of this Agreement and signed for the purpose of identification by,
amongst others, each of the parties to this Agreement.
1.2 INCORPORATION OF COMMON TERMS
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.
1.3 CONFLICT WITH COMMON TERMS
If there is any conflict between the provisions of the Common Terms and
the provisions of this Agreement, the provisions of this Agreement shall
prevail.
1.4 ADDITIONAL DEFINITIONS
"DELEGATE" means a person outside the United Kingdom who is not resident
in the United Kingdom for United Kingdom tax purposes (including, but
not limited to, the Jersey Bank Account Operator or any of its
Authorised Signatories) appointed by the Issuer and notified in writing
by the Issuer to the Account Bank and the Note Trustee (who shall not be
liable for the selection or appointment of such person), and who agrees
to be bound by the Relevant Documents and is authorised to give
revocable instructions to the Account Bank with respect to crediting to
or debiting of monies from that account PROVIDED THAT after the
occurrence of an Event of Default, the Issuer shall be entitled to
appoint the Note Trustee even if it is resident in the United Kingdom
for tax purposes;
"ELECTRONIC MEANS" means in respect of transfers of sterling amounts, by
way of CHAPS or such other system(s) as may replace it and in respect of
transfers of dollar amounts, by
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way of SWIFT or such other system(s) as may replace it, or any other
electronic messaging or transfer system as may be agreed between the
parties hereto;
"ISSUER DISTRIBUTION ACCOUNT" means, with respect to each Series,
(together with any redesignation or sub-account thereof or any
replacement therefor with any bank which is a Qualifying Institution),
each account designated the "Arran Funding Limited - Issuer Distribution
Account" and designated with reference to the number of such Series;
"LEDGER" means in respect of the Series, any of the ledgers regarding
amounts debited from and credited to the Issuer Distribution Account of
the Series and any sub-ledgers and further sub-ledgers thereof relating
to any Class or Sub-Class; and
"THE SERIES" means the Series 2005-A.
1.5 OBLIGOR/OBLIGEE
1.5.1 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 and the Account Bank were the Obligor and the Note
Trustee were the Obligee for the purposes of such Paragraph.
1.5.2 Limited recourse and non-petition
The provisions of Paragraph 8 (Limited Recourse and
Non-Petition) of the Common Terms apply to this Agreement as if
set out in full in this Agreement.
1.6 GOVERNING LAW AND JURISDICTION
This Agreement and all matters arising from or connected with it shall
be governed by English law in accordance with Paragraph 26 (Governing
Law) of the Common Terms. Paragraph 27 (Jurisdiction) of the Common
Terms applies to this Agreement as if set out in full in this Agreement.
1.7 REPRESENTATIONS AND WARRANTIES
The Issuer gives certain representations and warranties to the Note
Trustee on the terms set out in Schedule 4 (Issuer's Representations and
Warranties) of the Arran Funding Master Framework Agreement.
1.8 COVENANTS
The Issuer covenants with the Note Trustee on the terms set out in
Schedule 5 (Issuer Covenants) of the Arran Funding Master Framework
Agreement.
1.9 The headings in this Agreement shall not affect its interpretation.
1.10 Words denoting the singular number only shall include the plural number
also and vice versa; words denoting one gender only shall include the
other genders and words denoting persons only shall include firms and
corporations and vice versa.
1.11 References to this or any other agreement or document include any
amendment or supplement thereto or variation thereof for the time being
having effect.
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1.12 The parties hereto acknowledge that references to the Arran Funding Note
Trust Deed in this Agreement are for definition purposes only and that
(other than as expressly provided herein) the Account Bank, in its
capacity as the account operating bank under this Agreement, shall not
be deemed to have notice of its terms.
2. THE ACCOUNT
2.1 Prior to the occurrence of an Event of Default and subject to Clause
4.2, the Account Bank shall comply with any direction of the Issuer or
its Delegate with respect the Issuer Distribution Account provided that
such direction shall:
(a) be in writing; and
(b) comply with the Mandate.
Notwithstanding the provisions of this Clause 2.1 amounts shall only be
withdrawn from the Issuer Distribution Account to the extent that such
withdrawal does not cause the relevant account to become overdrawn and
furthermore credits shall only be made to an account when the Account
Bank shall have received cleared funds.
2.2 The Account Bank agrees that if directed pursuant to Clause 2.1 to make
any payment, and provided such direction is given by the Issuer, its
Delegate or the Note Trustee prior to 3.30 p.m. it will transfer such
amounts prior to close of business on the Business Day on which such
direction is received and for value that day provided that if any
direction is received by the Account Bank later than 3.30 p.m. (London
time) on any Business Day the Account Bank shall make such payment as
soon as practicable the commencement of business on the following
Business Day for value that day.
2.3 The charges of the Account Bank (if any) for the operation of the Issuer
Distribution Account shall not be debited the Issuer Distribution
Account but shall be payable by the Issuer within 30 days or less of
receipt of a written invoice and charged by the Account Bank to the
Issuer on the same basis and at the same rates as are generally
applicable to its business customers and the Account Bank hereby
acknowledges that it will have no recourse by way of set-off or
otherwise against any funds standing to the credit the Issuer
Distribution Account or against any party hereto other than the Issuer
in respect of the said charges.
3. MANDATE
The Issuer has agreed to deliver the Mandate to the Account Bank (with a
copy to the Note Trustee) and the Account Bank hereby confirms to the
Issuer and the Note Trustee:
(a) receipt by it of the Mandate from the Issuer; and
(b) that the Mandate is operative and supercedes any previous
mandates or arrangements relating to the Issuer Distribution
Account.
4. ACKNOWLEDGEMENT BY THE ROYAL BANK OF SCOTLAND INTERNATIONAL LIMITED
4.1 Notwithstanding anything to the contrary in the Mandate, the Account
Bank hereby:
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(a) acknowledges that pursuant to the Arran Funding Note Trust Deed
and the Series 2005-A Arran Funding Note Trust Deed Supplement
the Issuer intends to assign, with respect to the Series, its
rights, title and interest in the within the Issuer Distribution
Account to the Note Trustee by way of security; and
(b) subject to execution by the Issuer of the Arran Funding Note
Trust Deed and the Series 2005-A Arran Funding Note Trust Deed
Supplement (such execution to be notified by the Issuer to the
Account Bank), waives any right it has or may hereafter acquire
to combine, consolidate or merge the Issuer Distribution Account
with any other account of the Issuer or any other person or any
liabilities of the Issuer or any other person to the Account
Bank and agrees that it may not set off, transfer, combine or
withhold payment of any sum standing to the credit of the Issuer
Distribution Account in or towards or conditionally upon
satisfaction of any liabilities to it of the Issuer or any other
person.
4.2 Notwithstanding anything to the contrary in the Mandate or the Jersey
Bank Account Operating Agreement, the Account Bank hereby agrees (with
the consent of the Issuer):
(a) to comply with any direction of the Note Trustee expressed to be
given by the Note Trustee pursuant to the Arran Funding Note
Trust Deed and Series 2005-A Arran Funding Note Trust Deed
Supplement in respect of the operation of the Issuer
Distribution Account and the Account Bank shall be entitled to
rely on any such direction purporting to have been given on
behalf of the Note Trustee without enquiry; and
(b) after the occurrence of an Event of Default in relation to the
Series that all right, authority and power of the Issuer and the
Delegate in respect of the operation of the Issuer Distribution
Account shall be deemed to be terminated and of no further
effect and the Account Bank and the Issuer agree that the
Account Bank shall, upon receipt of such notice (to be given in
writing) from the Note Trustee, comply with the directions of
the Note Trustee or any receiver appointed under the Arran
Funding Note Trust Deed in relation to the operation of the
Issuer Distribution Account.
4.3 Until the Account Bank shall have been notified in writing by the Note
Trustee that none of the Notes are outstanding, the Account Bank shall
provide the Issuer and the relevant Delegate with a monthly statement in
respect of the Issuer Distribution Account or upon request from time to
time, and in the latter case such statement shall be provided as soon as
reasonably practicable after receipt of a request for a statement.
5. INDEMNITY
5.1 Unless otherwise directed by the Note Trustee pursuant to Clause 4.2,
the Account Bank in making payment from the Issuer Distribution Account,
in accordance with this Agreement, shall be entitled to act as directed
by the Issuer or its Delegate pursuant to Clause 2.1 and to rely as to
the amount of any such transfer or payment on the instruction of the
Issuer or its Delegate in accordance with the Mandate and the Account
Bank shall have no liability for any loss, injury or consequence
suffered or incurred by the Issuer for
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any action taken as a consequence of relying on any such instruction
except in the case of the Account Bank's wilful default, gross
negligence or breach of this Agreement.
5.2 The Issuer shall indemnify the Account Bank against any loss, cost,
damage, charge or expense incurred by the Account Bank in complying with
any direction of the Issuer, the Delegate or the Note Trustee as the
case may be, delivered pursuant to and in accordance with this
Agreement, save that this indemnity shall not extend to:
(a) the charges of the Account Bank (if any) for the operation of
the Issuer Distribution Account; and
(b) any loss, cost, damage, charge or expense arising from any
breach by the Account Bank of its obligations under this
Agreement.
6. TERMINATION AND RESIGNATION
6.1 RESIGNATION
The Account Bank may resign its appointment upon not less than 4 weeks'
notice to the Issuer (with a copy to the Note Trustee), provided that:
6.1.1 if such resignation would otherwise take effect less than 30
days before or after a Final Redemption Date or other date for
redemption of the Notes or any Interest Payment Date in relation
to the Notes, it shall not take effect until the thirtieth day
following such date; and
6.1.2 such resignation shall not take effect until a successor has
been duly appointed consistently with Clause 6.5 (Successor
Account Bank) or Clause 6.6 (Account Bank may appoint
Successors).
6.2 TERMINATION
The Issuer may (with the prior written approval of the Note Trustee)
revoke its appointment of the Account Bank by not less than 30 days'
notice to the Account Bank (with a copy, to the Note Trustee). Such
revocation shall not take effect until a successor, previously approved
in writing by the Note Trustee, has been duly appointed consistently
with Clause 6.5 (Successor Account Bank) or Clause 6.6 (Account Bank may
appoint Successors).
6.3 AUTOMATIC TERMINATION
The appointment of the Account Bank shall terminate forthwith if an
Insolvency Event occurs in relation to the Account Bank. If the
appointment of the Account Bank is terminated in accordance with this
provision, the Issuer shall forthwith appoint a successor in accordance
with Clause 6.5 (Successor Account Bank).
6.4 QUALIFIED INSTITUTION
In the event that the Account Bank ceases to be a Qualified Institution,
the Account Bank shall immediately give notice of that fact to the Note
Trustee and the Issuer. As soon as practicable thereafter and in any
event within 30 days of such notice, the Account Bank shall transfer the
closing credit balance of the Issuer Distribution Account, together with
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all interest accrued on such balance up to but not including the date of
transfer, to an appropriate successor account with a Qualified
Institution, approved by the Note Trustee.
6.5 SUCCESSOR ACCOUNT BANK
The Issuer may (with the prior written approval of the Note Trustee)
appoint a successor Account Bank and shall forthwith give notice of any
such appointment to the Note Trustee, whereupon the Issuer and the Note
Trustee and the successor Account Bank shall acquire and become subject
to the same rights and obligations between themselves as if they had
entered into an agreement in the form of (and on the same terms as) this
Agreement. Any successor Account Bank appointed by the Issuer shall be a
Qualified Institution.
6.6 ACCOUNT BANK MAY APPOINT SUCCESSORS
If the Account Bank gives notice of its resignation in accordance with
Clause 6.1 (Resignation) and by the tenth day before the expiry of such
notice a successor has not been duly appointed in accordance with Clause
6.5 (Successor Account Bank), the Account Bank may itself, following
such consultation with the Issuer as is practicable in the circumstances
and with the prior written approval of the Note Trustee, appoint as its
successor any Qualified Institution. The Account Bank shall give notice
of such appointment to the Issuer and the Note Trustee whereupon the
Issuer and the Note Trustee and such successor shall acquire and become
subject to the same rights and obligations between themselves as if they
had entered into an agreement in the form of (and on the same terms as)
this Agreement.
6.7 MERGER
6.7.1 Successor through merger: Any legal entity into which the
Account Bank is merged or converted or any legal entity
resulting from any merger or conversion to which such the
Account Bank is a party shall, to the extent permitted by
applicable law, be the successor to the Account Bank without any
further formality.
6.7.2 Rights and obligations upon merger: In the event of such a
merger or conversion the Issuer and the Note Trustee and such
successor shall acquire and become subject to the same rights
and obligations between themselves as if they had entered into
an agreement in the form of (and on the same terms as) this
Agreement.
6.7.3 Notice of merger: Notice of any such merger or conversion shall
forthwith be given by such successor to the Issuer and the Note
Trustee.
7. CHANGE OF NOTE TRUSTEE OR ACCOUNT BANK
7.1 If there is any change in the identity of the Note Trustee in accordance
with the terms of the Arran Funding Note Trust Deed, or a change in the
identity of the Account Bank other than in terms of Clause 6.7 (Merger),
the parties hereto or any of them as appropriate shall execute such
documents and take such actions as the new Note Trustee or Account Bank
and the outgoing Note Trustee or Account Bank may require for the
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purpose of vesting in the new Note Trustee or Account Bank the rights
and obligations of the outgoing Note Trustee or Account Bank, and
releasing the outgoing Note Trustee or Account Bank from its future
obligations under this Agreement.
7.2 In the event of any termination under Clause 6 (Termination and
Resignation) the Account Bank shall take reasonable steps (for a period
of no longer than 3 months after such termination) to assist the other
parties hereto to effect an orderly transition of the Issuer's banking
arrangements.
8. COSTS
The Issuer agrees to pay the proper costs (including proper legal costs
and expenses) of the Account Bank and of the Note Trustee in connection
with the negotiation of this Agreement and the establishment of the
Account and the negotiation and execution of any further documents and
the taking of any further action to be executed or taken pursuant to
Paragraph 8 (Confidentiality) of Schedule 2 (Common Terms) of the Master
Framework Agreement.
IN WITNESS WHEREOF the parties hereto have signed and executed this Agreement
on the day and year first above written.
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SCHEDULE 1
BANK MANDATE
(ARRAN FUNDING LIMITED - ISSUER DISTRIBUTION ACCOUNT)
At a duly constituted meeting of the Board of Directors of Arran Funding
Limited (the "COMPANY") held at the registered office of the Company on [*]
2005.
IT WAS RESOLVED that:
1. The Company ratify the opening of the account number [*] sort code
16-10-28 in the name of the Company designated the "Arran Funding
Limited - Series [*] Issuer Distribution Account" (the "ISSUER
DISTRIBUTION ACCOUNT") held with The Royal Bank of Scotland
International Limited (the "ACCOUNT BANK" for the purpose of this
mandate) at Royal Bank House, 00 Xxxx Xxxxxx, Xx. Xxxxxx, Xxxxxx XX0 0XX
and that the Issuer Distribution Account be used as an account for the
benefit of the Company.
2. Terms defined in the Series 2005-A Issuer Distribution Account Bank
Agreement entered into on or about [*] 2005 between the Company, The
Bank of New York, London Branch (the "NOTE TRUSTEE") and the Account
Bank (the "ISSUER DISTRIBUTION ACCOUNT BANK AGREEMENT") have the same
meanings herein, unless otherwise defined herein or as the context
otherwise requires.
3. In relation to the Issuer Distribution Account, the Account Bank is
hereby authorised to honour and comply with all cheques, drafts, bills,
payments by way of the Clearing House Automated Payment System,
promissory notes, acceptances, negotiable instruments and orders
expressed to be drawn, accepted made or given and all directions in
writing in respect of the Issuer Distribution Account opened pursuant to
the Issuer Distribution Account Bank Agreement, PROVIDED THAT any such
cheques, bills, promissory notes, acceptances, negotiable instruments,
directions, orders and/or endorsements are signed by any of the persons
whose names and specimen signatures are set out in the schedule attached
to these Resolutions including any of the authorised signatories of the
Delegate OR THAT any directions or orders are received by the Account
Bank by means of secure facsimile transmission that includes the signal
number authentication code supplied to the Issuer or its Delegate.
4. Notwithstanding Resolution 3 above, the Account Bank be and is hereby
instructed to act on any advice contained in a secure facsimile
transmission that includes the signal number authentication code with
respect to the debiting and crediting of monies from and to the Issuer
Distribution Account unless notified otherwise in writing by the
Company.
5. The mandates given to the Account Bank by virtue of these resolutions
shall, subject as provided in Resolution 6 below, remain in force,
unless and until the Account Bank has received from the Note Trustee
notice to the contrary (the "NOTE TRUSTEE'S NOTICE").
6. If the Account Bank has received the Note Trustee's Notice, any
instruction or other direction referred to in Resolution 3 as it relates
to amounts in the Issuer Distribution Account in respect of the Series
shall be signed by or on behalf of the Note Trustee or
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any substitute administrator or by the person or persons specified by
the Note Trustee in the Note Trustee's Notice or as otherwise agreed or
directed by the Note Trustee hereafter.
7. The Account Bank be supplied with the list of names of Directors, the
Secretary and other officers of the Company and of the Delegate and the
Account Bank be and is hereby authorised to act on any information given
by a Director or the Secretary of the Company or of the Delegate (as the
case may be) as to any changes therein.
8. These Resolutions be communicated to the Account Bank and remain in
force until an amending Resolution shall be passed by the Board of
Directors of the Company with the prior written consent of the Note
Trustee and a copy thereof and of such consent, certified by any one of
the Directors or the Secretary, shall be received by the Account Bank.
I hereby certify the above to be a true extract from the Minutes of the said
Meeting.
...........................
Director
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SCHEDULE
LIST OF SIGNATORIES
NAMES SPECIMEN SIGNATURE
Xxxxx Xxxxx
Xxxxxx Kerhoat
Gareth Xxxx Xxxxx-Xxxxx
Xxxx Xxxxxx
Please see attached Mourant & Co Standard Signatory List
EXECUTION PAGES
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EXECUTED as a deed by )
ARRAN FUNDING LIMITED )
by one of its directors: )
in the presence of: )
Process Agent:
Xxxxxxxx Chance Secretaries Limited
00 Xxxxx Xxxx Xxxxxx
Xxxxxx Xxxxx
Xxxxxx X00 0XX
EXECUTED as a deed by )
THE ROYAL BANK OF SCOTLAND )
INTERNATIONAL LIMITED )
by its authorised signatory )
in the presence of: )
Process Agent:
Xxxxxxxx Chance Secretaries Limited
00 Xxxxx Xxxx Xxxxxx
Xxxxxx Xxxxx
Xxxxxx X00 0XX
EXECUTED as a deed
by )
acting as attorney-in-fact )
for and on behalf of )
THE BANK OF NEW YORK )
In the presence of: )
Signature of witness )
Name of witness
Address:
Occupation:
Process Agent:
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Xxxxxxxx Chance Secretaries Limited
00 Xxxxx Xxxx Xxxxxx
Xxxxxx Xxxxx
Xxxxxx X00 0XX
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