EXHIBIT 10.4
DATED ___ NOVEMBER, 2002
XXXXXX FUNDING LIMITED
as Funding
and
ABBEY NATIONAL PLC
as Sixth Start-up Loan Provider
and
JPMORGAN CHASE BANK, LONDON BRANCH
as Security Trustee
-----------------------------------------
SIXTH START-UP LOAN AGREEMENT
-----------------------------------------
XXXXX & XXXXX
London
ICM:572252.2
CONTENTS
CLAUSE PAGE
1. Definitions and Interpretation.......................................1
2. The Facility.........................................................1
3. Interest.............................................................1
4. Repayment............................................................2
5. Acceleration.........................................................2
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. Funding Security Trustee as a Party..................................5
13. No Partnership.......................................................5
14. Variation............................................................6
15. Invalidity of any Provision..........................................6
16. Counterparts.........................................................6
17. Governing law........................................................6
18. Submission to Jurisdiction...........................................6
THIS SIXTH START-UP LOAN AGREEMENT is made on ___ November, 2002
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, Xxxxxxx Xxxxx, Xxxxxx XX0 0XX
("FUNDING");
(2) ABBEY NATIONAL PLC, a public limited company incorporated under the laws
of England and Wales whose registered office is at Abbey National House,
0 Xxxxxx Xxxxxx, Xxxxxxx Xxxxx, Xxxxxx XX0 0XX (the "SIXTH START-UP LOAN
PROVIDER"); and
(3) JPMORGAN CHASE BANK, 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 Amended and Restated Master Definitions and Construction Schedule,
signed for the purposes of identification by Xxxxx & Overy and Xxxxxxxxx
and May on ___ November, 2002 (as the same may be amended, varied or
supplemented from time to time with the consent of the parties hereto)
are expressly and specifically incorporated into this Agreement and,
accordingly, the expressions defined in the 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 Amended and Restated Master Definitions and
Construction Schedule.
2. THE FACILITY
The Sixth Start-up Loan Provider grants to Funding simultaneously with
the issue by the Sixth Issuer of the Sixth Issuer Notes and upon the
terms and subject to the conditions hereof, a sterling loan facility in
an aggregate amount of up to (pound)___ (___ pounds sterling) (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 Sixth
Issuer Closing Date for the purpose of providing funding for Funding's
fees, costs and expenses in respect of the addition to Funding's Share
of the Trust Property and in respect of amounts payable by Funding under
the Sixth Issuer Intercompany Loan in relation to the issue of the Sixth
Issuer Notes, which shall be paid into the Funding Transaction Account.
3. INTEREST
3.1 The Advance and any interest capitalised pursuant to CLAUSE 3.4 will
bear interest from (and including) the Sixth Issuer Closing Date until
the Advance and all accrued interest thereon is repaid in full at a rate
of (i) until (but excluding) the Interest Payment Date falling in [April
2008], LIBOR for three-month sterling deposits plus ___ per cent. per
annum and (ii) from the
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Interest Payment Date falling in [April 2008], LIBOR for three-month
sterling deposits plus ___ per cent. per annum. [For the first Interest
Period, LIBOR will be determined on the basis of a linear interpolation
between LIBOR for two-month and three-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 any 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 therefore after making the payments and provisions referred to
in paragraphs (a) to (p) 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 Sixth
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 Sixth 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
Sixth Start-up Loan and any New Start-up Loan will rank pari passu and
will be paid pro rata between themselves. The Sixth 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.
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.
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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 Sixth Start-up Loan
Provider's account (sort code 09-00-20; account number 00000000) (or
such other account as the Sixth 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 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 Sixth Start-up Loan Provider
to repay the Advance (including any interest capitalised
pursuant to CLAUSE 3.4) and accrued interest thereon; and
(b) the obligations 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 security, paid to the Sixth Start-up Loan Provider pursuant
to CLAUSE 8 of the Funding Deed of Charge,
provided that the Sixth 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.
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 Intercompany Loan,
and all other payments or provisions ranking in priority to payments to
be made to the Sixth 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 Sixth 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 Sixth Start-up Loan
Provider under this Agreement and so that Funding shall not be obliged
to make any payment to the Sixth 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 the Sixth Issuer does not repay
the Advance when due, such non-repayment will constitute an event of
default under this Sixth Start-up Loan Agreement.
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7.3 Funding undertakes that its obligations to the Sixth Start-up Loan
Provider hereunder shall at all times be secured by the Funding Deed of
Charge.
7.4 The Sixth 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 Funding Post-Enforcement Priority of Payments.
7.5 The Sixth 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 claim 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 Sixth Start-up Loan Provider undertakes that it will not, prior to
the second anniversary of the date on which any 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, Xxxxxxx
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, Business Relationship Management;
(b) in the case of the Sixth Start-up Loan Provider, to Abbey
National plc, Abbey National House, 0 Xxxxxx Xxxxxx, Xxxxxxx
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,
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,
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.
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9. TAXES
9.1 All payments to be made by Funding to the Sixth Start-up Loan Provider
hereunder shall be made free and clear of and without 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 Sixth
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 Sixth 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 Sixth Start-up Loan Provider to exercise, nor any
delay by the Sixth 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 Sixth 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 Sixth 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. COUNTERPARTS
16.1 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.
16.2 Each counterpart shall constitute an original of this Agreement, but all
the counterparts shall together constitute but one and the same
instrument.
17. GOVERNING LAW
This Agreement shall be governed by, and construed in accordance with,
the laws of England.
18. 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.
SIGNED for and on behalf of )
XXXXXX FUNDING LIMITED )
SIGNED for and on behalf of )
ABBEY NATIONAL PLC )
SIGNED for and on behalf of )
JPMORGAN CHASE BANK, )
LONDON BRANCH )
