Exhibit 10.4
DRAFT
EIGHTH START-UP LOAN AGREEMENT
DATED [[{circle}] APRIL, 2004]
▇▇▇▇▇▇ FUNDING LIMITED
as Funding
and
ABBEY NATIONAL PLC
as Eighth Start-up Loan Provider
and
JPMORGAN CHASE BANK, LONDON BRANCH
as Security Trustee
▇▇▇▇▇ & ▇▇▇▇▇
London
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............................................2
7. Subordination and Security...............................................3
8. Notices..................................................................4
9. Taxes....................................................................4
10. Remedies and Waivers.....................................................5
11. Assignments and Transfer.................................................5
12. Security Trustee as a Party..............................................5
13. No Partnership...........................................................5
14. Variation................................................................5
15. Invalidity of Any Provision..............................................5
16. Exclusion of Third Party Rights..........................................5
17. Counterparts.............................................................6
18. Governing Law............................................................6
19. Submission to Jurisdiction...............................................6
THIS EIGHTH START-UP LOAN AGREEMENT is made on [{circle}] April, 2004
BETWEEN:
(1) ▇▇▇▇▇▇ FUNDING LIMITED (registered number 3982428), a private limited
company incorporated in England and Wales, whose registered office is at
Abbey National House, ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇'▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
(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, 2 Triton Square, Regent's Place, London NW1
3AN (the EIGHTH 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (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 ▇▇▇▇▇ & Overy and ▇▇▇▇▇▇▇▇▇
and May on [{circle}] April, 2004 (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 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 Eighth Start-up Loan Provider grants to Funding simultaneously with
the issue by the Eighth Issuer of the Eighth Issuer Notes and upon the
terms and subject to the conditions hereof, a sterling loan facility in
an aggregate amount of up to [{pound-sterling}{circle})] (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 Eighth Issuer Closing Date
for the purpose of providing funding for Funding's fees, costs and
expenses in respect of the addition to the Funding Share of the Trust
Property and in respect of amounts payable by Funding under the Eighth
Issuer Intercompany Loan in relation to the issue of the Eighth 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 Eighth 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
[{circle}], LIBOR for three-month sterling deposits plus [{circle}] per
cent. per annum and (ii) from the Interest Payment Date falling in
[{circle}], LIBOR for three-month sterling deposits plus [{circle}] per
1
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 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 (s)] 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 Eighth
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 Eighth 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 Eighth
Start-up Loan and any New Start-up Loan will rank pari passu and will be
paid pro rata between themselves. The Eighth 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.
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 Eighth Start-up Loan
Provider's account (sort code [{circle}]; account number [{circle}]) (or
such other account as the Eighth Start-up Loan Provider may have
specified
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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 Eighth 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 Eighth
Start-up Loan Provider by the Security Trustee pursuant to Clause 8
8 of the Funding Deed of Charge,
provided that the Eighth 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 Intercompany Loan, and
all other payments or provisions ranking in priority to payments to be
made to the Eighth 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 Eighth 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 Eighth Start-up Loan Provider under
this Agreement and so that Funding shall not be obliged to make any
payment to the Eighth 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 ▇▇▇ ▇▇▇▇. 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
Eighth 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 Eighth Start-up Loan
Provider hereunder shall at all times be secured by the Funding Deed of
Charge.
7.4 The Eighth 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
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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 Eighth 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 Eighth 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 ▇▇▇▇▇▇ Funding Limited c/o Abbey
National plc, Abbey National House, ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇'▇
▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (facsimile number (▇▇) ▇▇ ▇▇▇▇ ▇▇▇▇) for the
attention of the Company Secretary with a copy to Abbey House (AAM
126), ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇ (facsimile
number (▇▇) ▇▇▇▇ ▇▇▇ ▇▇▇) for the attention of Securitisation
Team, Customer Risk and Decisioning;
(b) in the case of the Eighth Start-up Loan Provider, to Abbey
National plc, Abbey National House, ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇'▇
▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (facsimile number (▇▇) ▇▇ ▇▇▇▇ ▇▇▇▇) for the
attention of the Company Secretary; and
(c) in the case of the Security Trustee, to JPMorgan Chase Bank,
London Branch at Trinity Tower, 9 ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇
▇▇▇] (facsimile number [(▇▇) ▇▇ ▇▇▇▇ ▇▇▇▇]) 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.
9. TAXES
9.1 All payments to be made by Funding to the Eighth 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 Eighth 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
4
applicable law and shall deliver to the Eighth 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 Eighth Start-up Loan Provider to exercise, nor any
delay by the Eighth 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 Eighth 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 Eighth 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.
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) ▇▇▇ ▇▇▇▇, by any person who is not a party to this Agreement.
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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.
SIGNED for and on behalf of )
▇▇▇▇▇▇ FUNDING LIMITED )
SIGNED for and on behalf of )
ABBEY NATIONAL PLC )
SIGNED for and on behalf of )
JPMORGAN CHASE BANK, )
LONDON BRANCH )
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