EXHIBIT 10.5
CONFORMED COPY
ISSUE 2007-1 START-UP LOAN AGREEMENT
DATED 28 MARCH 2007
XXXXXX FUNDING LIMITED
as Funding
and
ABBEY NATIONAL PLC
as Issue 2007-1 Start-up Loan Provider
and
JPMORGAN CHASE BANK, N.A., LONDON BRANCH
as Security Trustee
[GRAPHIC OMITTED]
London
CONTENTS
Clause Page
1. Definitions and Interpretation.......................................1
2. The Facility.........................................................1
3. Interest.............................................................2
4. Repayment............................................................2
5. Acceleration.........................................................3
6. Payments and Limited Recourse........................................3
7. Subordination and Security...........................................3
8. Notices..............................................................4
9. Taxes................................................................5
10. Remedies and Waivers.................................................5
11. Assignments and Transfer.............................................5
12. Security Trustee as a Party..........................................5
13. No Partnership.......................................................5
14. Variation............................................................6
15. Invalidity of Any Provision..........................................6
16. Exclusion of Third Party Rights......................................6
17. Counterparts.........................................................6
18. Governing Law........................................................6
19. Submission to Jurisdiction...........................................6
THIS ISSUE 2007-1 START-UP LOAN AGREEMENT is made on 28 March 2007
BETWEEN:
(1) XXXXXX FUNDING LIMITED (registered number 3982428), a private limited
company incorporated in England and Wales, whose registered office is
at Abbey National House, 0 Xxxxxx Xxxxxx, Xxxxxx'x Xxxxx, Xxxxxx XX0
0XX (FUNDING);
(2) ABBEY NATIONAL PLC (registered number 2294747), a public limited
company incorporated under the laws of England and Wales whose
registered office is at Abbey National House, 0 Xxxxxx Xxxxxx, Xxxxxx'x
Xxxxx, Xxxxxx XX0 0XX (the ISSUE 2007-1 START-UP LOAN PROVIDER); and
(3) JPMORGAN CHASE BANK, N.A., LONDON BRANCH (formerly known as The Chase
Manhattan Bank, London Branch), whose principal office is at Xxxxxxx
Xxxxx, 0 Xxxxxx Xxxx Xxxxxx, Xxxxxx X0X 0XX (the SECURITY TRUSTEE,
which expression shall include such person and all other persons for
the time being acting as trustee or trustees under the Funding Deed of
Charge).
IT IS HEREBY AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
The Further Amended and Restated Master Definitions and Construction
Schedule, signed for the purposes of identification by Xxxxx & Overy
and Xxxxxxxxx and May on 28 March 2007 (as the same may be amended,
varied or supplemented from time to time with the consent of the
parties hereto) is expressly and specifically incorporated into this
Agreement and, accordingly, the expressions defined in the Further
Amended and Restated Master Definitions and Construction Schedule (as
so amended, varied or supplemented) shall, except where the context
otherwise requires and save where otherwise defined herein, have the
same meanings in this Agreement, including the Recitals hereto and this
Agreement shall be construed in accordance with the interpretation
provisions set out in Clause 2 of that Further Amended and Restated
Master Definitions and Construction Schedule.
2. THE FACILITY
The Issue 2007-1 Start-up Loan Provider grants to Funding
simultaneously with the issue by the Master Issuer of the Issue 2007-1
Notes and, upon the terms and subject to the conditions hereof, a
sterling loan facility in an aggregate amount of up to
(pound)77,000,000 (the amount so granted or such part of such amount as
shall be outstanding from time to time being referred to as the
ADVANCE) on the 2007-1 Closing Date as follows:
(a) a tranche in the sum of up to (pound)6,000,000 (six million
pounds) for the purpose of providing funding for Funding's fees,
costs and expenses in respect of the acquisition of the
acquisition of the New Loans on the 2007-1 Closing Date and in
respect of amounts payable by Funding under the Master
Intercompany Loan Agreement in relation to the issue of the Issue
2007-1 Notes (TRANCHE A); and
(b) a tranche in the sum of up to (pound)71,000,000 (seventy-one
million pounds) for the purpose of adding to the balance of the
First Reserve Fund to be recorded as a credit balance on the
First Reserve Ledger (TRANCHE B),
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Tranche A shall be paid into the Funding Transaction Account. Tranche B
shall be paid into the Funding GIC Account
3. INTEREST
3.1 The Advance and any interest capitalised pursuant to Clause 3.4 will
bear interest from (and including) the 2007-1 Closing Date until the
Advance and all accrued interest thereon is repaid in full at a rate of
LIBOR for three-month sterling deposits. For the first Interest Period,
LIBOR will be determined on the basis of a linear interpolation between
LIBOR for three-month and four-month sterling deposits.
3.2 Subject to Clauses 6.2 and 6.3, interest on the Advance and any
interest capitalised pursuant to Clause 3.4 will be payable in arrear
on each Interest Payment Date.
3.3 Interest shall be calculated by reference to each Interest Period on
the basis of the actual number of days elapsed and a 365 day year.
3.4 Any interest accrued in respect of an Interest Period but not paid on
the Interest Payment Date relating thereto shall be capitalised
forthwith.
4. REPAYMENT
4.1 Funding shall make repayments toward the Advance (including any
interest capitalised pursuant to Clause 3.4) on each Interest Payment
Date if, and to the extent that, there are Funding Available Revenue
Receipts available therefor after making the payments and provisions
referred to in paragraphs (a) to (u) of the Funding Pre-Enforcement
Revenue Priority of Payments, until the Advance has been fully repaid.
4.2 The Cash Manager is responsible, pursuant to the Cash Management
Agreement, for determining the amount of Funding Available Revenue
Receipts as at any Intercompany Loan Determination Date and each
determination so made shall (in the absence of negligence, wilful
default, bad faith or manifest error) be final and binding on the Issue
2007-1 Start-up Loan Provider.
4.3 Subject to Clauses 5, 6.2, 6.3 and 7.2, on any Interest Payment Date on
which all the Intercompany Loans have been repaid in full, Funding
shall immediately repay the Advance (including any interest capitalised
pursuant to Clause 3.4) and pay any accrued interest.
4.4 The Issue 2007-1 Start-up Loan Provider hereby acknowledges that from
time to time Funding may enter into New Start-up Loan Agreements with
New Start-up Loan Providers and that the obligation of Funding to repay
this Issue 2007-1 Start-up Loan and any New Start-up Loan will rank
pari passu and will be paid pro rata between themselves. The Issue
2007-1 Start-up Loan Provider further acknowledges that the Funding
Pre-Enforcement Revenue Priority of Payments and the Funding
Post-Enforcement Priority of Payments set out in Parts I and III of
Schedule 3 to the Funding Deed of Charge respectively will be amended
to reflect the entry by Funding into New Start-up Loan Agreements and
related agreements from time to time and agrees to execute such
documents as are necessary or required by the Rating Agencies for the
purpose of including the New Start-up Loan Provider and the New Issuer
(and any other relevant party) in the Transaction Documents to effect
those amendments.
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5. ACCELERATION
If any Intercompany Loan Enforcement Notice is served, this facility
shall be cancelled and the Advance (including any interest capitalised
pursuant to Clause 3.4) and accrued interest shall, subject to the
Funding Deed of Charge, become immediately due and payable.
6. PAYMENTS AND LIMITED RECOURSE
6.1 All payments to be made hereunder by Funding shall be made in sterling
in immediately available cleared funds to the Issue 2007-1 Start-up
Loan Provider's account (sort code 09-00-09, account number 00000000)
(or such other account as the Issue 2007-1 Start-up Loan Provider may
have specified in writing to Funding for this purpose). If any sum
falls due hereunder otherwise than on a Business Day, it shall be paid
on the next succeeding Business Day.
6.2 Prior to service of any Intercompany Loan Enforcement Notice or
repayment in full of all the Intercompany Loans, amounts of principal,
interest and any other amounts due hereunder shall be paid only in
accordance with Clause 7.4 of this Agreement and Part 1 of Schedule 3
of the Funding Deed of Charge.
6.3 If, upon the Advance becoming due and payable pursuant to Clauses 4.3
or 5, Funding has insufficient funds available to meet its obligations
hereunder in full on such date then:
(a) Funding shall utilise its funds on such date to the extent
available in making payments to the Issue 2007-1 Start-up Loan
Provider to repay the Advance (including any interest capitalised
pursuant to Clause 3.4) and accrued interest thereon; and
(b) the obligation of Funding to pay the shortfall together with any
amounts falling due and payable thereafter shall on any day be
limited to the available funds acquired by Funding subsequent to
such date, together with the proceeds of the enforcement of the
Funding Security, such funds and proceeds to be paid to the Issue
2007-1 Start-up Loan Provider by the Security Trustee pursuant to
Clause 8 of the Funding Deed of Charge,
provided that the Issue 2007-1 Start-up Loan Provider shall not release
Funding from Funding's obligation to pay the remaining amount that
would have been due under this Agreement had this Clause 6.3 not
applied, nor shall this Clause 6.3 be construed as having that effect.
7. SUBORDINATION AND SECURITY
7.1 The parties hereby agree that the Advance shall be subordinated to,
inter alia, payments of principal and interest on any previous
intercompany loan made available by a previous issuing entity or the
Master Issuer, and all other payments or provisions ranking in priority
to payments to be made to the Issue 2007-1 Start-up Loan Provider under
this Agreement in accordance with the priority of payments or as
provided in Clause 8 and Schedule 3 of the Funding Deed of Charge.
7.2 The Issue 2007-1 Start-up Loan Provider further agrees that, without
prejudice to Clause 8 of the Funding Deed of Charge, its rights against
Funding under this Agreement are limited to the extent that Funding has
sufficient assets to meet its claim or any part thereof having taken
into account all other liabilities, both actual and contingent, of
Funding which pursuant to the Funding Deed of Charge rank pari passu
with or in priority to its liabilities to the Issue 2007-1 Start-up
Loan Provider under this Agreement and so that Funding shall not be
obliged to
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make any payment to the Issue 2007-1 Start-up Loan Provider hereunder
if and to the extent that the making of such payment would cause
Funding to be or become unable to pay its debts within the meaning of
Section 123 of the Insolvency Xxx 0000. However, if there are
sufficient Funding Available Revenue Receipts available but Funding
does not repay the Advance when due, such non-repayment will constitute
an event of default under this Issue 2007-1 Start-up Loan Agreement
causing the Advance and any accrued interest thereon to be accelerated
in accordance with Clause 5.
7.3 Funding undertakes that its obligations to the Issue 2007-1 Start-up
Loan Provider hereunder shall at all times be secured by the Funding
Deed of Charge.
7.4 The Issue 2007-1 Start-up Loan Provider hereby undertakes to be bound
by the terms of the Funding Deed of Charge and the Cash Management
Agreement and in particular agrees that on enforcement of the security
created by the Funding Deed of Charge, all amounts of principal,
interest and any other amounts due hereunder shall rank in the order of
priority set out in the Funding Post-Enforcement Priority of Payments.
7.5 The Issue 2007-1 Start-up Loan Provider further covenants that, except
as permitted under Clause 9 of the Funding Deed of Charge, it will not
set off or purport to set off the Advance or any interest thereon or
any part of either thereof against any liability owed by it to Funding.
7.6 The Issue 2007-1 Start-up Loan Provider undertakes that it will not,
prior to the second anniversary of the date on which all of the Notes
are redeemed in full, take any corporate action or other steps or legal
proceedings for the winding up, dissolution or reorganisation or for
the appointment of a receiver, administrator, administrative receiver,
trustee, liquidator, sequestrator or similar officer of Funding or of
any or all of the revenues and assets of Funding nor participate in any
proceedings without notice nor seek to enforce any judgment against
Funding, except as permitted under the provisions of the Funding Deed
of Charge.
8. NOTICES
Any notices to be given pursuant to this Agreement or to any of the
parties hereto shall be sufficiently served if sent by prepaid first
class post or by facsimile transmission and shall be deemed to be given
(in the case of facsimile transmission) when despatched, (where
delivered by hand) on the day of delivery if delivered before 17.00
hours on a Business Day or on the next Business Day if delivered
thereafter or (in the case of first class post) when it would be
received in the ordinary course of the post and shall be sent:
(a) in the case of Funding, to Xxxxxx Funding Limited c/o Abbey
National plc, Abbey National House, 0 Xxxxxx Xxxxxx, Xxxxxx'x
Xxxxx, Xxxxxx XX0 0XX (facsimile number (00) 00 0000 0000) for
the attention of the Company Secretary with a copy to Abbey House
(AAM 126), 000 Xxxxxxx Xxxx Xxxx, Xxxxxx Xxxxxx, XX0 0XX
(facsimile number (00) 0000 000 000) for the attention of
Securitisation Team, Retail Credit Risk;
(b) in the case of the Issue 2007-1 Start-up Loan Provider, to Abbey
National plc, Abbey National House, 0 Xxxxxx Xxxxxx, Xxxxxx'x
Xxxxx, Xxxxxx XX0 0XX (facsimile number (00) 00 0000 0000) for
the attention of the Company Secretary; and
(c) in the case of the Security Trustee, to JPMorgan Chase Bank,
N.A., London Branch at Xxxxxxx Xxxxx, 0 Xxxxxx Xxxx Xxxxxx,
Xxxxxx X0X 0XX (facsimile number (00) 00 0000 0000) for the
attention of the Manager, Trust Administration Services,
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or to such other address or facsimile number as may from time to
time be notified by any party to the other by written notice in
accordance with the provisions of this Clause 8.
9. TAXES
9.1 All payments to be made by Funding to the Issue 2007-1 Start-up Loan
Provider hereunder shall be made free and clear of and without
withholding or deduction for or on account of Tax unless Funding is
required by law to make such a payment subject to the deduction or
withholding of Tax, in which case Funding shall promptly upon becoming
aware thereof notify the Issue 2007-1 Start-up Loan Provider of such
obligation, and shall make such payments subject to such deduction or
withholding of Tax which it is required to make.
9.2 If Funding makes any payment hereunder in respect of which it is
required to make any deduction or withholding, it shall pay the full
amount required to be deducted or withheld to the relevant taxation or
other authority within the time allowed for such payment under
applicable law and shall deliver to the Issue 2007-1 Start-up Loan
Provider, within thirty days after such payment falls due to the
applicable authority, any original receipt (or a certified copy
thereof) issued by such authority evidencing such payment.
10. REMEDIES AND WAIVERS
No failure by the Issue 2007-1 Start-up Loan Provider to exercise, nor
any delay by the Issue 2007-1 Start-up Loan Provider in exercising, any
right or remedy hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise of any right or remedy prevent any
further or other exercise thereof or the exercise of any other right or
remedy. The rights and remedies herein provided are cumulative and not
exclusive of any rights or remedies provided by law.
11. ASSIGNMENTS AND TRANSFER
11.1 Funding (other than in respect of any assignment by way of security
pursuant to the Funding Deed of Charge) may not assign and/or transfer
any of its rights and/or obligations under this Agreement.
11.2 If there is any change in the identity of the Security Trustee pursuant
to the terms of the Funding Deed of Charge, the Issue 2007-1 Start-up
Loan Provider and Funding shall execute such documents and take such
actions as the new Security Trustee and the outgoing Security Trustee
(as the case may be) may reasonably require for the purpose of vesting
in the new Security Trustee the rights and obligations of the outgoing
Security Trustee and releasing the outgoing Security Trustee (as the
case may be) from its future obligations under this Agreement.
12. SECURITY TRUSTEE AS A PARTY
The Security Trustee has agreed to become a party to this Agreement for
the better preservation and enforcement of its rights under this
Agreement and the Security Trustee shall assume no obligations or
liabilities whatsoever to the Issue 2007-1 Start-up Loan Provider or to
Funding.
13. NO PARTNERSHIP
Nothing in this Agreement (or in any of the arrangements contemplated
hereby) shall, or shall be deemed to, constitute a partnership amongst
the parties hereto.
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14. VARIATION
No variation of this Agreement shall be effective unless it is in
writing and signed by or on behalf of each of the parties hereto.
15. INVALIDITY OF ANY PROVISION
If any of the provisions of this Agreement becomes invalid, illegal or
unenforceable in any respect under any law, the validity, legality and
enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
16. EXCLUSION OF THIRD PARTY RIGHTS
The parties to this Agreement do not intend that any term of this
Agreement should be enforced, by virtue of the Contracts (Rights of
Third Parties) Xxx 0000, by any person who is not a party to this
Agreement.
17. COUNTERPARTS
17.1 This Agreement may be executed in any number of counterparts, and by
the parties on separate counterparts, but shall not be effective until
each party has executed at least one counterpart.
17.2 Each counterpart shall constitute an original of this Agreement, but
all the counterparts shall together constitute but one and the same
instrument.
18. GOVERNING LAW
This Agreement shall be governed by, and construed in accordance with,
the laws of England.
19. SUBMISSION TO JURISDICTION
Each party to this Agreement hereby irrevocably submits to the
non-exclusive jurisdiction of the English courts in any action or
proceeding arising out of or relating to this Agreement, and hereby
irrevocably agrees that all claims in respect of such action or
proceeding may be heard and determined by such courts. Each party to
this Agreement hereby irrevocably waives, to the fullest extent it may
possibly do so, any defence or claim that the English courts are an
inconvenient forum for the maintenance or hearing of such action or
proceeding.
IN WITNESS WHEREOF the parties hereto have executed this Agreement the day and
year first before written.
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SIGNATORIES
SIGNED for and on behalf of )
XXXXXX FUNDING LIMITED ) /s/ XXXX XXXXXX
SIGNED for and on behalf of )
ABBEY NATIONAL PLC ) /s/ XXXXX XXXXXXXX
SIGNED for and on behalf of )
JPMORGAN CHASE BANK, N.A., ) /s/ XXXX DANHAIVE
LONDON BRANCH )
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