Exhibit 10.6.2
DRAFT
THIS AGREEMENT is made on the [ {circle} ], 2004
BETWEEN:
(1) SPV MANAGEMENT LIMITED (registered number 2548079) whose business
address is at Tower 42, International Finance Centre, ▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ("SPV");
(2) ▇▇▇▇▇▇ HOLDINGS LIMITED (registered number 3689577) whose registered
office is at ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇'▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
("HOLDINGS");
(3) ▇▇▇▇▇▇ FINANCING (NO. 8) PLC (registered number4992222) whose registered
office is at ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇'▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (the
"EIGHTH 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 whose principal office is at One Canada Square,
London, E14 5AL (the "EIGHTH ISSUER SECURITY TRUSTEE" which expression
shall include such person and all other persons for the time being
acting as trustee or trustees under the Eighth Issuer Deed of Charge).
WHEREAS:
(A) SPV in its own right, and SPV and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (a director of SPV,
Holdings and the Eighth 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 Eighth Issuer.
(C) SPV has agreed with the other parties to this Agreement to provide
certain corporate and personnel services to the Eighth 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 Eighth Issuer Master Definitions and Construction Schedule, both
signed for the purposes of identification by ▇▇▇▇▇ & ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇
and May on [ {circle} ], 2004 (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 Eighth 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, 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
Eighth Issuer Master Definitions and Construction Schedule.
In the event of a conflict between the Master Definitions Schedule and
the Eighth Issuer Master Definitions and Construction Schedule, the
Eighth 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 EIGHTH ISSUER
Pursuant to a declaration of trust dated 12th January, 2004 (the
"THIRTEENTH DECLARATION OF TRUST"), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ holds his interest
in one jointly owned share in the share capital of the Eighth 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 Eighth 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 Eighth 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 Eighth Issuer (and shall be deemed to
have so nominated SPV and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ as its first nominees
in such capacity) and nothing herein
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shall prevent SPV from nominating itself as a corporate director
of the Eighth Issuer.
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 Eighth Issuer, it will
promptly:
(A) procure that such director shall acknowledge in writing that he
has no claim of any nature whatsoever against the Eighth 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 Eighth 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 Eighth 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 Thirteenth Declaration of Trust, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
(and any successor shareholder) shall exercise his rights as a
shareholder of Holdings and the Eighth Issuer and all rights and
powers vested in him under the Articles of Association of Holdings
and the Eighth Issuer so as to procure that the board of
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directors of the Eighth 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.
4. NOMINATION OF DIRECTORS AFTER SERVICE OF A EIGHTH ISSUER NOTE
ENFORCEMENT NOTICE
4.1 RIGHTS AND POWERS UPON A EIGHTH ISSUER NOTE ENFORCEMENT NOTICE
In the event that a Eighth Issuer Note Enforcement Notice is served on
the Eighth Issuer, Holdings shall exercise its rights as a joint holder
with ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (and any successor shareholder) of one share in
the Eighth Issuer and as sole beneficial owner of forty-nine thousand
nine hundred and ninety-nine shares in the Eighth Issuer and the rights
and powers vested in it under the Articles of Association of the Eighth
Issuer so as to procure that:
(A) such new or additional directors of the Eighth Issuer as the
Eighth 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 Eighth Issuer Security Trustee requests shall tender their
resignation, if so requested by the Eighth Issuer Security
Trustee,
and nothing shall prevent the Eighth Issuer Security Trustee from
nominating itself for appointment as a director of the Eighth Issuer.
4.2 NOMINEES
In the event that a Eighth Issuer Note Enforcement Notice is served on
the Eighth Issuer, Holdings shall procure that, subject to his duties
under the Thirteenth 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 Eighth Issuer Security Trustee.
4.4 REQUESTS OF THE EIGHTH 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 Thirteenth Declaration of Trust, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (and any
successor shareholder) complies, with all reasonable requests of the
Eighth Issuer Security Trustee as to:
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(A) the exercise of its and/or ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇'▇ (and any successor
shareholder's) rights as shareholder of Holdings; and
(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 Eighth Issuer.
4.5 RESIGNATION
In the event that a Eighth Issuer Note Enforcement Notice is served on
the Eighth 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 Eighth 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 Eighth 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 Eighth 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
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(F) to the disclosure of any information to the Eighth Issuer Security
Trustee,
and SPV hereby agrees to indemnify and hold harmless ANPLC, the Eighth
Issuer Security Trustee and the Eighth 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-sterling}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 Eighth
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-sterling}10,000 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-sterling}2,500.00
(together with VAT thereon) quarterly in advance on each Interest
Payment Date if, on the relevant Interest Payment Date, SPV, in
respect of the Eighth 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
April, 2004 shall be made on the Eighth Issuer Closing Date.
7. COVENANT BY HOLDINGS
Holdings hereby covenants with the Eighth Issuer Security Trustee that
it shall not sell, charge, exchange, transfer or otherwise deal in the
shares which it holds in the Eighth Issuer at any time prior to the
Final Redemption relating to the Eighth Issuer without the prior written
consent of the Eighth Issuer Security Trustee.
8. NO RECOURSE AGAINST EMPLOYEES, OFFICERS OR DIRECTORS
The obligations of SPV under this Agreement and the obligations of the
Eighth Issuer under the Transaction Documents are solely the corporate
obligations of SPV and the Eighth 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 Eighth Issuer under
this Agreement, such rights and obligations shall terminate
automatically on the date falling 90 days after all Eighth 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 Eighth Issuer in accordance with the Eighth Issuer
Deed of Charge, shall not be capable of assignment, except that the
Eighth Issuer Security Trustee may assign its rights hereunder to any
successor trustee or trustees under the Eighth 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 EIGHTH ISSUER SECURITY TRUSTEE
The Eighth 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 Eighth 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. 8) PLC)
SIGNED by )
for and on behalf of )
ABBEY NATIONAL PLC )
SIGNED by )
for and on behalf )
THE BANK OF NEW YORK )
8
DATED [{circle}], 2004
SPV MANAGEMENT LIMITED
and
▇▇▇▇▇▇ HOLDINGS LIMITED
and
▇▇▇▇▇▇ FINANCING (NO. 8) PLC
and
ABBEY NATIONAL PLC
and
THE BANK OF NEW YORK
____________________________________________________
EIGHTH ISSUER CORPORATE SERVICES AGREEMENT
____________________________________________________
▇▇▇▇▇▇▇▇▇ AND MAY
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
(MSXH/GO/YNL)
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 EIGHTH 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 EIGHTH ISSUER SECURITY TRUSTEE 7