EXHIBIT 10.6.2
DATED NOVEMBER, 2002
SPV MANAGEMENT LIMITED
and
▇▇▇▇▇▇ HOLDINGS LIMITED
and
▇▇▇▇▇▇ FINANCING (NO. 6) PLC
and
ABBEY NATIONAL PLC
and
[THE BANK OF NEW YORK], LONDON BRANCH
----------------------------------------------------
SIXTH ISSUER CORPORATE SERVICES AGREEMENT
----------------------------------------------------
▇▇▇▇▇▇▇▇▇ AND MAY
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
(MSXH/AGL)
CB022910136
CONTENTS
PAGE
1. DEFINITIONS AND INTERPRETATION ........................................ 1
2. SHARE TRUSTEESHIP ..................................................... 2
3. NOMINATION OF DIRECTORS PRIOR TO SERVICE OF AN ENFORCEMENT NOTICE ..... 2
4. NOMINATION OF DIRECTORS AFTER SERVICE OF A SIXTH ISSUER NOTE
ENFORCEMENT NOTICE .................................................... 4
5. CONFIDENTIALITY ....................................................... 5
6. REMUNERATION .......................................................... 6
7. COVENANT BY HOLDINGS .................................................. 6
8. NO RECOURSE AGAINST EMPLOYEES, OFFICERS OR DIRECTORS .................. 6
9. TERMINATION ........................................................... 7
10. NON-ASSIGNMENT ........................................................ 7
11. GOVERNING LAW ......................................................... 7
12. THE ISSUER SECURITY TRUSTEE ........................................... 7
THIS AGREEMENT is made on the ___ November, 2002
BETWEEN:
(1) SPV MANAGEMENT LIMITED (registered number 2548079) whose business address
is at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ("SPV");
(2) ▇▇▇▇▇▇ HOLDINGS LIMITED (registered number 3689577) whose registered
office is at ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ("HOLDINGS");
(3) ▇▇▇▇▇▇ FINANCING (NO. 6) PLC (registered number 4359738) whose registered
office is at ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (the "SIXTH
ISSUER");
(4) ABBEY NATIONAL PLC (registered number 2294747), a public limited company
incorporated under the laws of England and Wales, whose registered office
is at ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ("ANPLC"); and
(5) [THE BANK OF NEW YORK], LONDON BRANCH whose principal office is at ___
(the "ISSUER SECURITY TRUSTEE" which expression shall include such person
and all other persons for the time being acting as trustee or trustees
under the Sixth Issuer Deed of Charge).
WHEREAS:
(A) SPV in its own right and SPV and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (a director of SPV,
Holdings and the Sixth Issuer) jointly are the registered holders of the
whole of the issued share capital of Holdings.
(B) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ is jointly registered with Holdings as the holder of one
share in the Sixth Issuer.
(C) SPV has agreed with the other parties to this Agreement to provide certain
corporate and personnel services to the Sixth Issuer as described below.
IT IS HEREBY AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
The Amended and Restated Master Definitions and Construction Schedule and
the Sixth Issuer Master Definitions and Construction Schedule, both signed
for the purposes of identification by ▇▇▇▇▇ & ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ 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 Master Definitions and Construction Schedule
and the Sixth Issuer 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 meanings in
this Agreement,
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including the Recitals hereto, and this Agreement shall be construed in
accordance with the interpretation provisions set out in Clause 2 of the
Master Definitions and Construction Schedule and the Sixth Issuer Master
Definitions and Construction Schedule.
In the event of a conflict between the Master Definitions Schedule and the
Sixth Issuer Master Definitions and Construction Schedule, the Sixth
Issuer Master Definitions and Construction Schedule shall prevail.
2. SHARE TRUSTEESHIP
2.1 HOLDINGS
(A) Pursuant to a declaration of trust dated 11th February, 1999, a
letter dated 9th June, 2000 from Piers Minoprio to (and
countersigned by) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and SPV Management Limited and a
share transfer dated 9th June, 2000 transferring one share in
Holdings from SPV and Piers Minoprio to SPV and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
(together, the "FIRST DECLARATION OF TRUST"), SPV and ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ jointly hold one share in the share capital of Holdings on
a fixed trust for SPV in its own right.
(B) Pursuant to a declaration of trust dated 17th February, 1999 (the
"SECOND DECLARATION OF TRUST") SPV holds the entire beneficial
interest in the issued share capital of Holdings on a discretionary
trust for the Discretionary Objects (as defined in the Second
Declaration of Trust).
2.2 THE SIXTH ISSUER
Pursuant to a declaration of trust dated 26th March, 2002 (the "ELEVENTH
DECLARATION OF TRUST"), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ holds his interest in one jointly
owned share in the share capital of the Sixth Issuer on a fixed trust for
Holdings.
3. NOMINATION OF DIRECTORS PRIOR TO SERVICE OF AN ENFORCEMENT NOTICE
3.1 ENTITLEMENT TO NOMINATE
Prior to the service of a Sixth Issuer Note Enforcement Notice and for so
long as this Agreement remains in force:
(A) ANPLC is entitled to nominate one person willing to serve in the
capacity of director of the Sixth Issuer and ANPLC shall be deemed
to have so nominated ▇▇▇▇▇▇▇ ▇▇▇▇ as its first nominee in such
capacity; and
(B) SPV is entitled to nominate two persons willing to serve in the
capacity of director of the Sixth Issuer (and shall be deemed to
have so nominated SPV and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ as its first nominees in
such capacity) and nothing herein shall prevent SPV from nominating
itself as a corporate director of the Sixth Issuer.
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3.2 APPOINTOR
In relation to any person nominated or deemed to be nominated under clause
3.1 above or clause 3.3 below, whichever of ANPLC or SPV nominated that
person is referred to below as that person's "APPOINTOR".
3.3 RESIGNATION OR RETIREMENT OF DIRECTOR
Each appointor hereby confirms to the other that, if the person nominated
or deemed to be nominated by it should resign or retire or for any other
reason cease to act as director of the Sixth Issuer, it will promptly:
(A) procure that such director shall acknowledge in writing that he has
no claim of any nature whatsoever against the Sixth Issuer;
(B) nominate another person willing to act in the relevant capacity; and
(C) procure the consent of that other person to act in that capacity.
3.4 ACCEPTANCE OF APPOINTMENT AND PAYMENT
Each appointor shall procure that each of the persons respectively
nominated or deemed to be nominated by it from time to time as provided
above accepts the relevant appointment and acts in the relevant capacity
without fee or remuneration (including, for the avoidance of doubt, upon
resignation or retirement) from the Sixth Issuer, save that nothing in
this Agreement shall prejudice the right of SPV to be remunerated for its
services under Clause 6.
3.5 COMPOSITION OF BOARDS
SPV undertakes and agrees:
(A) subject to its duties and obligations as trustee under the First
Declaration of Trust and the Second Declaration of Trust and subject to
Clause 4.4, that it shall exercise its rights as a shareholder of Holdings
and all rights and powers vested in it under the Articles of Association
of Holdings so as to procure that the board of directors of the Sixth
Issuer comprises at all times one nominee of ANPLC (provided that ANPLC
shall have nominated a person to such office) and two nominees of SPV, as
provided under Clause 3.1; and
(B) to procure that, subject to his duties under the First Declaration of
Trust and the Eleventh Declaration of Trust, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (and any
successor shareholder) shall exercise his rights as a shareholder of
Holdings and the Sixth Issuer and all rights and powers vested in him
under the Articles of Association of Holdings and the Sixth Issuer so as
to procure that the board of directors of the Sixth Issuer comprises at
all times one nominee of ANPLC (provided that ANPLC shall have nominated a
person to such office) and two nominees of SPV, as provided under Clause
3.1.
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4. NOMINATION OF DIRECTORS AFTER SERVICE OF A SIXTH ISSUER NOTE ENFORCEMENT
NOTICE
4.1 RIGHTS AND POWERS UPON A SIXTH ISSUER NOTE ENFORCEMENT NOTICE
In the event that a Sixth Issuer Note Enforcement Notice is served on the
Sixth Issuer, Holdings shall exercise its rights as a joint holder with
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (and any successor shareholder) of one share in the Sixth
Issuer and as sole beneficial owner of forty-nine thousand nine hundred
and ninety-nine shares in the Sixth Issuer and the rights and powers
vested in it under the Articles of Association of the Sixth Issuer so as
to procure that:
(A) such new or additional directors of the Sixth Issuer as the Issuer
Security Trustee shall direct shall be duly appointed; and
(B) such of the directors nominated pursuant to Clauses 3.1 or 3.3 as
the Issuer Security Trustee requests shall tender their resignation,
if so requested by the Issuer Security Trustee,
and nothing shall prevent the Issuer Security Trustee from nominating
itself for appointment as a director of the Sixth Issuer.
4.2 NOMINEES
In the event that a Sixth Issuer Note Enforcement Notice is served on the
Sixth Issuer, Holdings shall procure that, subject to his duties under the
Eleventh Declaration of Trust, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (and any successor
shareholder) ensures that the results described in Clause 4.1 are
achieved.
4.3 TERMS OF APPOINTMENT
Any director nominated or appointed pursuant to Clause 4.1 shall be
appointed upon such terms (including reasonable remuneration) as may be
agreed between its appointees and the Issuer Security Trustee.
4.4 REQUESTS OF THE ISSUER SECURITY TRUSTEE
For so long as SPV and SPV and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (and any successor
shareholder) jointly are the registered holders of the whole of the issued
share capital of Holdings, and in the event (but only in the event) that
the provisions of Clause 4.1 apply, SPV undertakes and agrees, subject to
its duties and obligations as trustee under the First Declaration of Trust
and the Second Declaration of Trust, to comply and shall procure that
subject to his duties under the First Declaration of Trust and the
Eleventh Declaration of Trust, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (and any successor
shareholder) complies, with all reasonable requests of the Issuer Security
Trustee as to:
(A) the exercise of its and/or ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇'▇ (and any successor
shareholder's) rights as shareholder of Holdings; and
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(B) all rights and powers vested in it and/or ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (and any
successor shareholder) under the Articles of Association of
Holdings,
in relation to the appointment and/or removal from office by Holdings of
any of the directors of the Sixth Issuer.
4.5 RESIGNATION
In the event that a Sixth Issuer Note Enforcement Notice is served on the
Sixth Issuer, any appointment of a director in office at such time validly
made pursuant to Clauses 3.1 or 3.3 shall continue to be effective in
accordance with the provisions of this Agreement unless and until such
director has resigned pursuant to Clause 4.1(B).
5. CONFIDENTIALITY
SPV shall not, and hereby undertakes to procure that each person nominated
or deemed to be nominated as director of the Sixth Issuer by it pursuant
to Clause 3 shall not, and that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (and any successor
shareholder) shall not (regardless of whether or not such person shall
still be in office or is still a shareholder), at any time disclose to any
person, firm or company whatsoever, and shall treat as confidential, any
information relating to the business, finances or other matters of ANPLC
or the Sixth Issuer which it or he may have obtained as a result of (in
the case of SPV) its role under this Agreement or as employer or principal
to any such director or shareholder and (in the case of any such director
or shareholder) his or its position as director or shareholder of the
Sixth Issuer, or otherwise have become possessed, and SPV shall use its
best endeavours to prevent any such disclosure, provided however that the
provisions of this clause shall not apply:
(A) to the disclosure of any information already known to the recipient;
(B) to the disclosure of any information which is or becomes public
knowledge otherwise than as a result of such disclosure being made
in breach of this Clause 5, or as a result of the unauthorised or
improper conduct of the recipient;
(C) to the extent that disclosure is required pursuant to any law or
order of any court or pursuant to any direction, request or
requirement (whether or not having the force of law) of any central
bank or any governmental or other regulatory or taxation authority
(including, but without limitation to, any official bank examiners
or regulators or the United Kingdom Listing Authority or the London
Stock Exchange plc);
(D) to the disclosure of any information to professional advisers who
receive the information under a duty of confidentiality;
(E) to the disclosure of any information with the consent of the parties
hereto; and
(F) to the disclosure of any information to the Issuer Security Trustee,
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and SPV hereby agrees to indemnify and hold harmless ANPLC, the Issuer
Security Trustee and the Sixth Issuer on an after tax basis for all
losses, damages, expenses, costs, claims and charges arising from or
caused by any disclosure of information by any of SPV, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
(and any successor shareholder) or any director nominated by it, which
disclosure is made contrary to the provisions of this clause.
6. REMUNERATION
6.1 INITIAL FEE
SPV shall be entitled to an initial fee of (pound)[17,500] (together with
VAT thereon) in consideration of the services provided by it under this
Agreement, payment of which shall be made on the Sixth Issuer Closing
Date.
6.2 REMUNERATION FOR PROVISION OF DIRECTORS
For so long as any director nominated by SPV is in office, SPV shall be
entitled to remuneration for the services provided by it under this
Agreement of (pound)[12,250] per annum (together with VAT thereon).
(A) The remuneration payable pursuant to this Clause 6.2 shall be borne
by Funding and payable as to (pound)[3,062.50] (together with VAT
thereon) quarterly in advance on each Interest Payment Date if, on
the relevant Interest Payment Date, SPV, in respect of the Sixth
Issuer, has at least one director in office appointed pursuant to
Clauses 3.1(B) or 3.3 of this Agreement.
(B) [The payment in respect of the Interest Payment Date falling in
November, 2002 shall be made on the Sixth Issuer Closing Date.]
7. COVENANT BY HOLDINGS
Holdings hereby covenants with the Issuer Security Trustee that it shall
not sell, charge, exchange, transfer or otherwise deal in the shares which
it holds in the Sixth Issuer at any time prior to the Final Redemption
relating to the Sixth Issuer without the prior written consent of the
Issuer Security Trustee.
8. NO RECOURSE AGAINST EMPLOYEES, OFFICERS OR DIRECTORS
The obligations of SPV under this Agreement and the obligations of the
Sixth Issuer under the Transaction Documents are solely the corporate
obligations of SPV and the Sixth Issuer. No recourse shall be had in
respect of any obligation or claim arising out of or based upon this
Agreement or any of the Transaction Documents against any employee,
officer or director of SPV save where the claim, demand, liability, cost
or expense in connection therewith arises from the negligence, wilful
default or breach of duty of such employee, officer or director.
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9. TERMINATION
In respect of rights and obligations relating to the Sixth Issuer under
this Agreement, such rights and obligations shall terminate automatically
on the date falling 90 days after all Sixth Issuer Secured Obligations are
discharged in full.
10. NON-ASSIGNMENT
The rights and obligations of the parties hereto are personal and, save in
the case of the Sixth Issuer in accordance with the Sixth Issuer Deed of
Charge, shall not be capable of assignment, except that the Issuer
Security Trustee may assign its rights hereunder to any successor trustee
or trustees under the Sixth Issuer Deed of Charge.
11. GOVERNING LAW
This Agreement is governed by, and shall be construed in accordance with,
the laws of England.
12. THE ISSUER SECURITY TRUSTEE
The Issuer Security Trustee has agreed to become a party to this Agreement
for the better preservation and enforcement of its rights under this
Agreement but shall have no obligation or liability whatsoever to any of
the parties under or arising from or by virtue of the Issuer Security
Trustee joining as a party to this Agreement.
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SIGNED by the authorised representative of the parties hereto the day and year
first before written.
SIGNED by )
for and on behalf of )
SPV MANAGEMENT LIMITED )
SIGNED by )
for and on behalf of )
▇▇▇▇▇▇ HOLDINGS LIMITED )
SIGNED by )
for and on behalf of )
▇▇▇▇▇▇ FINANCING (NO. 6) PLC )
SIGNED by )
for and on behalf of )
ABBEY NATIONAL PLC )
SIGNED by )
for and on behalf )
[THE BANK OF NEW YORK], LONDON BRANCH )