THIS AGREEMENT is made on the {circle} March, 2003
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. 7) PLC (registered number4645659) whose registered
office is at 0 Xxxxxx Xxxxxx, Xxxxxx'x Xxxxx, Xxxxxx XX0 0XX (the
"SEVENTH 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 "SEVENTH ISSUER SECURITY TRUSTEE" which expression
shall include such person and all other persons for the time being
acting as trustee or trustees under the Seventh Issuer Deed of Charge).
WHEREAS:
(A) SPV in its own right, and SPV and Xxxxxx XxXxxxxxx (a director of SPV,
Holdings and the Seventh 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 Seventh Issuer.
(C) SPV has agreed with the other parties to this Agreement to provide
certain corporate and personnel services to the Seventh 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 Seventh Issuer Master Definitions and Construction Schedule,
both signed for the purposes of identification by Xxxxx & Xxxxx and
Xxxxxxxxx and May on {circle} March, 2003 (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 Seventh Issuer Master Definitions and
Construction Schedule (as so amended, varied or supplemented) shall,
except where the context
2
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 Seventh Issuer Master Definitions and
Construction Schedule.
In the event of a conflict between the Master Definitions Schedule and
the Seventh Issuer Master Definitions and Construction Schedule, the
Seventh 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 SEVENTH ISSUER
Pursuant to a declaration of trust dated 23rd January, 2003 (the "TWELFTH
DECLARATION OF TRUST"), Xxxxxx XxXxxxxxx holds his interest in one jointly
owned share in the share capital of the Seventh 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 Seventh 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 Seventh Issuer and ANPLC shall be deemed
to have so nominated Xxxxxxx Xxxx 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 Seventh Issuer (and shall be deemed to
have so nominated SPV and Xxxxxx XxXxxxxxx as its first nominees in
such capacity) and nothing herein
3
shall prevent SPV from nominating itself as a corporate director of
the Seventh 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 Seventh Issuer, it will promptly:
(A) procure that such director shall acknowledge in writing that he has no
claim of any nature whatsoever against the Seventh 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 Seventh 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 Seventh 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 Twelfth Declaration of Trust, Xxxxxx XxXxxxxxx (and any
successor shareholder) shall exercise his rights as a shareholder of
Holdings and the Seventh Issuer and all rights and powers vested in
him under the Articles of Association of Holdings and the Seventh
Issuer so as to procure that the board
4
of directors of the Seventh 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 SEVENTH ISSUER NOTE ENFORCEMENT
NOTICE
4.1 RIGHTS AND POWERS UPON A SEVENTH ISSUER NOTE ENFORCEMENT NOTICE
In the event that a Seventh Issuer Note Enforcement Notice is served on the
Seventh Issuer, Holdings shall exercise its rights as a joint holder with
Xxxxxx XxXxxxxxx (and any successor shareholder) of one share in the
Seventh Issuer and as sole beneficial owner of forty-nine thousand nine
hundred and ninety-nine shares in the Seventh Issuer and the rights and
powers vested in it under the Articles of Association of the Seventh Issuer
so as to procure that:
(A) such new or additional directors of the Seventh Issuer as the Seventh
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
Seventh Issuer Security Trustee requests shall tender their
resignation, if so requested by the Seventh Issuer Security Trustee,
and nothing shall prevent the Seventh Issuer Security Trustee from
nominating itself for appointment as a director of the Seventh Issuer.
4.2 NOMINEES
In the event that a Seventh Issuer Note Enforcement Notice is served on the
Seventh Issuer, Holdings shall procure that, subject to his duties under
the Twelfth 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 Seventh Issuer Security Trustee.
4.4 REQUESTS OF THE SEVENTH 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 Twelfth Declaration
5
of Trust, Xxxxxx XxXxxxxxx (and any successor shareholder) complies,
with all reasonable requests of the Seventh 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
(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 Seventh Issuer.
4.5 RESIGNATION
In the event that a Seventh Issuer Note Enforcement Notice is served on the
Seventh 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 Seventh 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 Seventh 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 Seventh 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);
6
(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 Seventh Issuer Security
Trustee,
and SPV hereby agrees to indemnify and hold harmless ANPLC, the Seventh
Issuer Security Trustee and the Seventh 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-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 Seventh 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}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-sterling}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 Seventh
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 Seventh Issuer Closing Date.
7. COVENANT BY HOLDINGS
Holdings hereby covenants with the Seventh Issuer Security Trustee that it
shall not sell, charge, exchange, transfer or otherwise deal in the shares
which it holds in the Seventh Issuer at any time prior to the Final
Redemption relating to the Seventh Issuer without the prior written consent
of the Seventh Issuer Security Trustee.
8. NO RECOURSE AGAINST EMPLOYEES, OFFICERS OR DIRECTORS
The obligations of SPV under this Agreement and the obligations of the
Seventh Issuer under the Transaction Documents are solely the corporate
obligations of SPV and the
7
Seventh 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.
9. TERMINATION
In respect of rights and obligations relating to the Seventh Issuer under
this Agreement, such rights and obligations shall terminate automatically
on the date falling 90 days after all Seventh 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 Seventh Issuer in accordance with the Seventh Issuer Deed
of Charge, shall not be capable of assignment, except that the Seventh
Issuer Security Trustee may assign its rights hereunder to any successor
trustee or trustees under the Seventh 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 SEVENTH ISSUER SECURITY TRUSTEE
The Seventh 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 Seventh Issuer
Security Trustee joining as a party to this Agreement.
8
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. 7) PLC )
SIGNED by )
for and on behalf of )
ABBEY NATIONAL PLC )
SIGNED by )
for and on behalf )
THE BANK OF NEW YORK )
DRAFT
DATED {circle} MARCH, 2003
SPV MANAGEMENT LIMITED
and
XXXXXX HOLDINGS LIMITED
and
XXXXXX FINANCING (NO. 7) PLC
and
ABBEY NATIONAL PLC
and
THE BANK OF NEW YORK
____________________________________________________
SEVENTH ISSUER CORPORATE SERVICES AGREEMENT
____________________________________________________
XXXXXXXXX AND MAY
XXX XXXXXXX XXX
XXXXXX XX0X 0XX
(MSXH/GO)
CB030720049
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 SEVENTH 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 SEVENTH ISSUER SECURITY TRUSTEE 7
