DRAFT, 21 NOVEMBER, 2005
Exhibit 10.6.2
1
DATED 2005
SPV MANAGEMENT LIMITED
and
XXXXXX HOLDINGS LIMITED
and
XXXXXX FINANCING (NO. 9) PLC
and
ABBEY NATIONAL PLC
and
THE BANK OF NEW YORK
----------------------------------------------------
NINTH ISSUER CORPORATE SERVICES AGREEMENT
----------------------------------------------------
XXXXXXXXX AND MAY
XXX XXXXXXX XXX
XXXXXX XX0X 0XX
(MSXH/LMR)
2
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 NINTH 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 NINTH ISSUER SECURITY TRUSTEE 7
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THIS AGREEMENT is made on the 2005
BETWEEN:
(1) SPV MANAGEMENT LIMITED (registered number 2548079) whose business
address is at Tower 42, International Finance Centre, 00 Xxx Xxxxx
Xxxxxx, Xxxxxx XX0X 0XX ("SPV");
(2) XXXXXX HOLDINGS LIMITED (registered number 3689577) whose registered
office is at 0 Xxxxxx Xxxxxx, Xxxxxx'x Xxxxx, Xxxxxx XX0 0XX
("HOLDINGS");
(3) XXXXXX FINANCING (NO. 9) PLC (registered number 5115696) whose
registered office is at 0 Xxxxxx Xxxxxx, Xxxxxx'x Xxxxx, Xxxxxx XX0 0XX
(the "NINTH 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 0 Xxxxxx Xxxxxx, Xxxxxx'x Xxxxx, Xxxxxx XX0 0XX
("ANPLC"); and
(5) THE BANK OF NEW YORK whose principal office is at One Canada Square,
London, E14 5AL (the "NINTH ISSUER SECURITY TRUSTEE" which expression
shall include such person and all other persons for the time being
acting as trustee or trustees under the Ninth Issuer Deed of Charge).
WHEREAS:
(A) SPV in its own right, and SPV and Xxxxxx XxXxxxxxx (a director of SPV,
Holdings and the Ninth Issuer) jointly, are the registered holders of
the whole of the issued share capital of Holdings.
(B) Xxxxxx XxXxxxxxx is jointly registered with Holdings as the holder of
one share in the Ninth Issuer.
(C) SPV has agreed with the other parties to this Agreement to provide
certain corporate and personnel services to the Ninth 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 Ninth Issuer Master Definitions and Construction Schedule, both
signed for the purposes of identification by Xxxxx & Overy and
Xxxxxxxxx and May on [ o ], 2005 (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 Ninth 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
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provisions set out in Clause [2] of the Master Definitions and
Construction Schedule and the Ninth Issuer Master Definitions and
Construction Schedule.
In the event of a conflict between the Master Definitions Schedule and
the Ninth Issuer Master Definitions and Construction Schedule, the
Ninth 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) Xxxxxx XxXxxxxxx 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
Xxxxxx XxXxxxxxx (together, the "FIRST DECLARATION OF TRUST"),
SPV and Xxxxxx XxXxxxxxx 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 NINTH ISSUER
Pursuant to a declaration of trust dated 24th May, 2004 (the
"FOURTEENTH DECLARATION OF TRUST"), Xxxxxx XxXxxxxxx holds his interest
in one jointly owned share in the share capital of the Ninth 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 Ninth 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 Ninth Issuer and ANPLC shall
be deemed to have so nominated Xxxxx Xxxxx 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 Ninth Issuer (and shall be
deemed to have so nominated SPV and Xxxxxx XxXxxxxxx as its
first nominees in such capacity) and nothing herein shall
prevent SPV from nominating itself as a corporate director of
the Ninth 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 Ninth Issuer, it
will promptly:
(A) procure that such director shall acknowledge in writing that
he has no claim of any nature whatsoever against the Ninth
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 Ninth 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 Ninth 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 Foutheenth Declaration of Trust,
Xxxxxx XxXxxxxxx (and any successor shareholder) shall
exercise his rights as a shareholder of Holdings and the Ninth
Issuer and all rights and powers vested in him under the
Articles of Association of Holdings and the Ninth Issuer so as
to procure that the board of directors of the Ninth 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 NINTH ISSUER NOTE
ENFORCEMENT NOTICE
4.1 RIGHTS AND POWERS UPON A NINTH ISSUER NOTE ENFORCEMENT NOTICE
In the event that a Ninth Issuer Note Enforcement Notice is served on
the Ninth Issuer, Holdings shall exercise its rights as a joint holder
with Xxxxxx XxXxxxxxx (and any successor shareholder) of one share in
the Ninth Issuer and as sole beneficial owner of forty-nine thousand
nine hundred and ninety-nine shares in the Ninth Issuer and the rights
and powers vested in it under the Articles of Association of the Ninth
Issuer so as to procure that:
(A) such new or additional directors of the Ninth Issuer as the
Ninth 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 Ninth Issuer Security Trustee requests shall tender
their resignation, if so requested by the Ninth Issuer
Security Trustee,
and nothing shall prevent the Ninth Issuer Security Trustee from
nominating itself for appointment as a director of the Ninth Issuer.
4.2 NOMINEES
In the event that a Ninth Issuer Note Enforcement Notice is served on
the Ninth Issuer, Holdings shall procure that, subject to his duties
under the Fourteenth Declaration of Trust, Xxxxxx XxXxxxxxx (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 Ninth Issuer Security Trustee.
4.4 REQUESTS OF THE NINTH ISSUER SECURITY TRUSTEE
For so long as SPV, and SPV and Xxxxxx XxXxxxxxx (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 Fourteenth Declaration of Trust, Xxxxxx
XxXxxxxxx (and any successor shareholder) complies, with all reasonable
requests of the Ninth Issuer Security Trustee as to:
(A) the exercise of its and/or Xxxxxx XxXxxxxxx'x (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 Xxxxxx XxXxxxxxx
(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 Ninth Issuer.
4.5 RESIGNATION
In the event that a Ninth Issuer Note Enforcement Notice is served on
the Ninth 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 Ninth Issuer by
it pursuant to Clause 3 shall not, and that Xxxxxx XxXxxxxxx (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 Ninth 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 Ninth 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 Ninth Issuer
Security Trustee,
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and SPV hereby agrees to indemnify and hold harmless ANPLC, the Ninth
Issuer Security Trustee and the Ninth 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, Xxxxxx
XxXxxxxxx (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 Ninth 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)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)2,500.00] (together
with VAT thereon) quarterly in advance on each Quarterly
Interest Payment Date if, on the relevant Quarterly Interest
Payment Date, SPV, in respect of the Ninth 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 Quarterly Interest Payment Date
falling in [ o ], 2005 shall be made on the Ninth Issuer
Closing Date.
7. COVENANT BY HOLDINGS
Holdings hereby covenants with the Ninth Issuer Security Trustee that
it shall not sell, charge, exchange, transfer or otherwise deal in the
shares which it holds in the Ninth Issuer at any time prior to the
Final Redemption relating to the Ninth Issuer without the prior written
consent of the Ninth Issuer Security Trustee.
8. NO RECOURSE AGAINST EMPLOYEES, OFFICERS OR DIRECTORS
The obligations of SPV under this Agreement and the obligations of the
Ninth Issuer under the Transaction Documents are solely the corporate
obligations of SPV and the Ninth 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 Ninth Issuer under
this Agreement, such rights and obligations shall terminate
automatically on the date falling 90 days after all Ninth 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 Ninth Issuer in accordance with the Ninth Issuer
Deed of Charge, shall not be capable of assignment, except that the
Ninth Issuer Security Trustee may assign its rights hereunder to any
successor trustee or trustees under the Ninth 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 NINTH ISSUER SECURITY TRUSTEE
The Ninth 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 Ninth 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 )
XXXXXX HOLDINGS LIMITED )
SIGNED by )
for and on behalf of )
XXXXXX FINANCING (NO. 9) PLC )
SIGNED by )
for and on behalf of )
ABBEY NATIONAL PLC )
SIGNED by )
for and on behalf )
THE BANK OF NEW YORK )
