Exhibit 10.101
Instrument
dated 10 September 1998
by
IMPAC Europe Public Limited Company
as Issuer
and
Bank of America National Trust & Savings
Association (acting through its London branch)
as Guarantor
constituting a maximum principal amount of (pound)8,534,991
Guaranteed Unsecured Floating Rate Loan Notes 1999/2003
XXXXXXX & XXXXXXX
00 Xxxxxx Xxxxxx Xxxxxx XX0X 0XX
Tel 0000-000 0000 000 0000 Fax 0000-000 0000 DX Box No 12
CONTENTS
1. Definitions and interpretation ........................... 1
2. Issue .................................................... 4
3. Repayment ................................................ 4
4. Certificates ............................................. 4
5. Benefit of terms ......................................... 5
6. Registration ............................................. 5
7. Appointment of registrar ................................. 6
8. Guarantee ................................................ 6
9. Substitution and Exchange ................................ 9
10. Copy of instrument ....................................... 11
11. Rights of the Company .................................... 11
12. Overseas registration .................................... 12
13. Modification of this Instrument and/or the Conditions .... 12
14. Counterparts ............................................. 12
15. Waiver and Exercise of Rights ............................ 12
16. Governing law and jurisdiction ........................... 12
SCHEDULE 1: FORM OF CERTIFICATE FOR THE NOTES ................ 14
1. Status ................................................... 16
2. Interest ................................................. 16
3. Repayment ................................................ 17
4. Purchase ................................................. 19
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5. Cancellation ............................................. 20
6. Guarantee ................................................ 20
7. No set-off ............................................... 20
8. Modification ............................................. 20
9. Further issues of Notes .................................. 21
10. Delivery up of certificates .............................. 21
11. Manner of payment ........................................ 22
12. Notices .................................................. 23
1. Repayment ................................................ 24
2. Method of repayment ...................................... 24
3. Balance certificate ...................................... 24
SCHEDULE 2: REGISTRATION AND TRANSFER ........................ 26
1. Registered holder ........................................ 26
2. Entitlement .............................................. 26
3. Method of transfer ....................................... 26
4. Documents required for transfer .......................... 26
5. Charges .................................................. 27
6. Suspension ............................................... 27
7. Transfer of title ........................................ 27
8. Death or bankruptcy ...................................... 27
9. Replacement certificates ................................. 28
10. Overseas Registration .................................... 28
SCHEDULE 3: MEETINGS OF NOTEHOLDERS .......................... 29
1. Right to call ............................................ 29
ii
2. Notice period ............................................ 29
3. Quorum ................................................... 29
4. Chairman ................................................. 30
5. Right to adjourn ......................................... 30
6. Voting ................................................... 30
7. Casting vote ............................................. 31
8. Poll ..................................................... 31
9. Continuance .............................................. 31
10. Entitlement to vote ...................................... 31
11. Seniority ................................................ 31
12. Proxies .................................................. 31
13. Status of proxy .......................................... 32
14. Appointment of proxies ................................... 32
15. Method of appointment .................................... 32
16. Voting powers of proxies ................................. 32
17. Appointment of representative ............................ 32
18. Additional powers ........................................ 33
19. Extraordinary resolutions ................................ 33
20. Resolutions in writing ................................... 34
21. Meaning of Extraordinary resolution ...................... 34
22. Minutes .................................................. 34
23. Governing Law ............................................ 34
SCHEDULE 4: FORM OF DEMAND ................................... 35
iii
THIS INSTRUMENT is dated the 10th day of September 1998 and made
BY:
(1) IMPAC Europe Public Limited Company a company registered in England under
number 3487779 whose registered office is at 00 Xxxxxxxx Xxxxxx, Xxxxxx
XX0X 0XX (the "Company")
AND
(2) Bank of America National Trust & Savings Association acting through its
branch in London at Bank of America House, 0 Xxxx Xxxxxx, Xxxxxx X0 0XX
(the "Guarantor").
WHEREAS:
(A) In accordance with the Company's Memorandum and Articles of Associations
the Company by resolution of a duly authorised committee of its board of
Directors passed on 26 August 1998 has authorised the creation and issue
of up to a maximum principal amount of (pound)8,534,991 Guaranteed
Unsecured Floating Rate Loan Notes 1999/2003 to be constituted in the
manner hereinafter appearing for the purposes of implementing the offer
made on 22 July 1998 by the Company for the acquisition by the Company of
the whole of the issued and to be issued ordinary share capital of Xxxxxxx
Robor plc.
(B) The Guarantor has agreed in the manner set out in this Instrument to
guarantee the obligations of the Company in respect of the Notes (as
defined below).
NOW THIS INSTRUMENT WITNESSETH AND THE COMPANY AND THE GUARANTOR HEREBY AGREE
AND DECLARE as follows:
1. Definitions and interpretation
1.1 Definitions
In these presents where the context admits:
"Business Day" means a day (other than a Saturday or Sunday) on which
banks generally are open for ordinary banking business in London;
"Canada" means Canada, its territories, provinces and all areas subject to
its jurisdiction and any political sub-division thereof;
"Conditions" means the conditions endorsed or to be endorsed on the
certificates for the Notes in the form or substantially in the form set
out in Schedule 1 as the same may from time to time be modified in
accordance with the provisions of this
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Instrument and references to a particular numbered Condition shall be
construed accordingly;
"Directors" means the board of Directors for the time being of the Company
or a duly authorised committee of the board;
"IMPAC" means IMPAC Group, Inc., a corporation incorporated in Delaware,
United States of America;
"IMPAC Group" means IMPAC and its subsidiaries and subsidiary undertakings
from time to time;
"Noteholders" means the several persons for the time being entered in the
Register as holders of the Notes;
"Notes" means the Guaranteed Loan Notes 1999/2003 hereby constituted or,
as the case may be, the principal amount thereof for the time being issued
and outstanding;
"Offer" means the offer made on 22 July 1998 by the Company for the
acquisition by the Company of the whole of the issued and to be issued
ordinary share capital of Xxxxxxx Robor plc, as revised, varied, extended
or renewed and including any acquisition of such shares under sections 428
to 430F of the Companies Xxx 0000;
"Register" means the register of Noteholders kept by or on behalf of the
Company;
"Registered Office" means the registered office of the Company from time
to time or such other principal place of business of the Company in
England as may from time to time be determined by the Directors and
notified to the Noteholders and the Guarantor;
"Registrar" means the Company at its registered office for the time being
or such person as may for the time being be appointed to be the registrar
of the Company;
"Repayment" includes redemption and vice versa and the words "repay"
"redeem" "repayable" "redeemable" "repaid" and "redeemed" shall be
construed accordingly;
"Transfer Office" means the Registered Office or such other place within
England as may from time to time be determined by the Directors and
notified to the Noteholders and the Guarantor; and
"United States" means the United States of America, its territories and
possessions, any State of the United States of America and the district of
Columbia and any area subject to its jurisdictions and any political
sub-division thereof.
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1.2 Construction of Certain References
In this Instrument where the context admits:
(A) words and phrases the definitions of which are contained or referred
to in Part XXVI of the Companies Xxx 0000 shall be construed as
having the meanings thereby attributed to them;
(B) references to statutory provisions shall be construed as references
to those provisions as amended or re-enacted or as their application
is modified by other provisions from time to time and shall include
references to any provisions of which they are re-enactments
(whether with or without modification);
(C) references to Clauses and Schedules are references to Clauses hereof
and Schedules hereto, references to sub-Clauses or paragraphs are,
unless otherwise stated, references to sub-Clauses of the Clause or
paragraphs of the Schedule in which the reference appears;
(D) references to "this Instrument" include the Schedules and any deed
between the Company and the Guarantor expressed to be supplemental
hereto as from time to time amended or supplemented; and
(E) words denoting the singular shall include the plural and vice versa;
words denoting persons shall include corporations; and words
denoting the masculine shall include the feminine.
1.3 Headings
The headings and sub-headings are inserted for convenience only and shall
not affect the construction of this Instrument.
1.4 Conditions and Schedules
The Conditions to be endorsed on the certificates for the Notes in the
form or substantially in the form set out in Schedule 1 and the provisions
contained in Schedule 2 and Schedule 3 shall be deemed to be incorporated
in this Instrument and shall be binding on the Company and the Noteholders
and all persons claiming through or under them respectively.
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2. Issue
2.1 Issue
The aggregate nominal amount of the Notes is limited to (pound)8,534,991.
The Notes shall be issued in registered form credited as fully paid and in
amounts and integral multiples of (pound)1.00. The Notes will not be
listed on any stock exchange.
2.2 Status
The Notes shall rank pari passu and rateably inter se without any
preference or priority one to another as unsecured debt obligations of the
Company with the Company's other unsecured obligations apart from those
obligations which are preferred by insolvency laws or laws relating to
creditors' rights generally.
2.3 Further issues of Notes
Subject to the terms of the Offer and the limit in Clause 2.1 of this
Instrument, the Company shall be at liberty (and without the consent of
any then existing Noteholders or the Guarantor) to create and issue Notes
by way of consideration under the Offer.
3. Repayment
On 30 June 2003 (or, if such day is not a Business Day, on the immediately
preceding Business Day) or on such earlier date as the Notes or any part thereof
become repayable under the provisions of this Instrument or the Conditions, the
Company will, subject as provided in the Conditions, pay to each Noteholder the
amount due to be repaid on his Notes in accordance with Condition 3 together
with interest accrued up to, but excluding, the date of repayment (subject to
any requirement to deduct any applicable tax therefrom) and will, from the first
date of issue of any of the Notes to the date of such repayment, pay to each
Noteholder interest on his Notes (subject to any requirement to deduct any
applicable tax therefrom) for the periods and at the rate determined by the
Company pursuant to Condition 2 and on the dates specified in Condition 2 and
otherwise in accordance with the Conditions.
4. Certificates
4.1 Issue of Certificates
Every Noteholder shall be entitled without charge to one certificate for
the Notes held by him save that joint holders of Notes shall be entitled
to one certificate only in respect of the Notes held by them jointly
(provided always that the Company shall not be bound to register more than
four persons as the joint holders of any Notes) and such certificate shall
be delivered to that one of the joint holders who is first named on the
Register in respect of the joint holding or to such other person
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as the joint holders may in writing direct. Where some only of the Notes
comprised in a certificate are transferred or repaid, the old certificate
shall be cancelled and a new certificate for the balance of the Notes not
transferred or repayable on that occasion shall be issued to the
Noteholder concerned in lieu without charge.
4.2 Form of Certificates
Every certificate for Notes shall be in the form or substantially in the
form set out in Schedule 1 and shall have endorsed thereon Conditions in
the form or substantially in the form also set out in that Schedule. Every
certificate shall be issued under the Common or Securities Seal of the
Company which shall be affixed in accordance with the Articles of
Association for the time being of the Company.
5. Benefit of terms
The Company hereby covenants with the Noteholders and each of them duly to
perform and observe the obligations on its part contained in this Instrument,
including the provisions of the certificates for the Notes and the Conditions
endorsed thereon, and the Notes shall be held subject to and with the benefit of
such provisions, all of which shall be binding upon the Company, and all persons
claiming through or under it, and shall enure for the benefit of all
Noteholders, each of whom shall be entitled to xxx for the performance and
observance of such provisions so far as his Notes are concerned.
6. Registration
6.1 Obligation to maintain Register
The Registrar shall keep an accurate register of the Notes at the Transfer
Office and there shall be entered in the Register:
(A) the names and addresses of the holders for the time being of the
Notes and, in the case of the joint holders, the names of each joint
holder and the address of the first named holder;
(B) the amount of the Notes held by each registered holder and, in the
case of joint holders, the amount of the Notes held by the joint
holders taken together;
(C) the date upon which the name of each such registered holder
(including, in the case of joint holders, each joint holder) is
entered in respect of the Notes standing in his name (or their
names); and
(D) the serial number of each certificate for the Notes issued.
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6.2 Changes of name or address
Any change of name or address on the part of any Noteholder shall
forthwith be notified to the Registrar at the Transfer Office and
thereupon the Register shall be altered accordingly.
6.3 Inspection of Register
Any Noteholder and any person authorised by any Noteholder shall be at
liberty at all reasonable times during office hours to inspect the
Register and, at their own expense, to take copies of or extracts from the
same or any part thereof, except during such period or periods, not
exceeding 30 days in total in any year, as the Register is closed by the
Company.
7. Appointment of registrar
The Company may at any time appoint any bank, financial institution or company
offering registrar services acting through an office in England or Wales to act
as the Registrar or as paying agent in respect of the Notes on the terms of an
agreement setting out such Registrar's or paying agent's duties and
responsibilities. The Company shall notify the Noteholders and the Guarantor of
any such appointment. Each Noteholder and the Guarantor shall be entitled to
receive a copy of such agreement without charge on application to the Company.
No such appointment or the terms of any such agreement shall relieve the Company
of any obligation under this Instrument or the Notes.
8. Guarantee
8.1 Guarantor's Obligation
Subject to Clause 8.2, the Guarantor hereby irrevocably and
unconditionally guarantees to the Noteholders and each of them as primary
obligor the due and punctual payment by the Company of every sum due of
principal and interest from the Company in respect of the Notes. As
between the Guarantor and each of the Noteholders, the Guarantor shall be
liable as if it were the principal debtor and if any obligation of the
Company which is hereby guaranteed is void, voidable or unenforceable for
any reason the Guarantor's obligations together with such rights (if any)
as the Guarantor may have to be reimbursed by the Company shall not be
affected. In this Clause 8, "the Company" shall include every debtor
substituted for the Company pursuant to and in accordance with Clause 9.1
and every New Issuer which has issued New Loan Notes in exchange for the
Notes pursuant to and in accordance with Clause 9.1 and references to the
Notes include any New Loan Notes issued by a New Issuer pursuant to and in
accordance with Clause 9.1 (and references to Noteholders shall be
construed accordingly).
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8.2 Maximum Amount Recoverable
In respect of principal due from the Company with respect to the Notes,
the maximum aggregate amount payable by the Guarantor under this
Instrument at any time shall be the aggregate principal amount of the
Notes issued less (a) the aggregate principal amount of the Notes redeemed
and repaid by the Company; and less (b) the aggregate amount paid by the
Guarantor under this Instrument in respect of principal at such time.
In respect of each (pound)1.00 of principal guaranteed under this
Instrument by the Guarantor, the maximum amount of interest recoverable
from the Guarantor at any time and from time to time shall not exceed an
amount calculated in accordance with the following formula:
A = B/C
where
A = the maximum amount of interest recoverable from the Guarantor in
respect of such (pound)1 of principal at such time;
B = (pound)375,000 less an amount equal to the aggregate of all
amounts (if any) paid by the Guarantor under this Instrument in
respect of interest prior to such time; and
C = the aggregate principal amount of Notes which have been issued and
not redeemed or repaid by the Company as most recently certified by
the Company to the Guarantor pursuant to this Clause 8.2.
The Company undertakes to notify the Guarantor of any redemption of Notes
by the Company within ten Business Days thereafter and, at the same time
(and at such other time or times as the Guarantor may request), to certify
to the Guarantor the aggregate principal amount of Notes which have been
issued and have not been redeemed by the Company at such time.
8.3 Demand
Demands made to the Guarantor under this Instrument shall:
(A) be made within six months after the failure by the Company to pay
any principal moneys or interest payable on the Notes within 30 days
of the due date for payment in respect of which such demand is being
made, provided that no such demand shall be made on the Guarantor
after 31 January, 2004 and any demand made after that date shall be
invalid;
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(B) be in or substantially in the form set out in Schedule 4 to this
Instrument addressed to Bank of America, National Trust & Savings
Association, 0 Xxxx Xxxxxx, Xxxxxx Xx 0XX (marked for the attention
of "Trade Finance Department, Ref: 6008GT 003823 /98") and, in the
case of a demand for payment of principal of any Note, be
accompanied by the certificate(s) relating to the relevant Note(s)
in respect of which such demand is made (or, in the case of any lost
or destroyed certificate, by an appropriate indemnity in favour of
the Guarantor from the Noteholder in a form satisfactory to the
Guarantor (acting reasonably));
(C) be signed by or on behalf of the relevant Noteholder (or, in the
case of joint holders, by the first-named such holder);
(D) state:
(1) the full name and address (as appears in the Register) of such
Noteholder and the amount of principal which is claimed and,
in the case of a claim for interest, state the principal
amount on which interest is claimed and the date(s) in respect
of which interest is being claimed;
(2) in the case of a demand for redemption of principal payable in
respect of the Notes, that none of the Notes in respect of
which such demand is made has been cancelled or repurchased by
the Company; and
(3) that the sum demanded is due and payable by the Company, and
the Company has failed to pay the sum demanded.
8.4 Reliance
The Guarantor may rely on any demand or other document or information
believed by it to be genuine and correct and to have been signed or
communicated by the person by whom it purports to be signed or
communicated and the Guarantor shall not be liable for the consequences of
such reliance and shall not investigate or have any obligation to verify
or establish that the facts or matters stated therein are true and
correct.
8.5 Receipt
The Guarantor shall only be liable under this Instrument following the
actual receipt by it of a demand made in accordance with Clause 8.3.
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8.6 Giving of time etc.
The guarantee in this Instrument is to be a continuing guarantee and shall
remain in force (subject to the expiry provisions of Clause 8.3) until all
amounts payable by the Company in respect of the Loan Notes shall have
been paid in full. The Guarantor's obligations under this Clause 8 shall
not be discharged or affected in any way by any of the following: (1) any
time or indulgence granted to the Company, (2) any amendment to any of the
provisions of this Instrument or any of the Notes made, in each case, in
accordance with its terms or any variation, compromise or release of the
Company's obligations or liabilities under this Instrument or any of the
Notes as may from time to time be agreed between the Company and the
Noteholders or any of them, (3) the making or absence of any demand on the
Company for payment, (4) the enforcement or absence of enforcement of, or
the unenforceability of, this Instrument or the Notes or any of them, (5)
the liquidation, winding-up, amalgamation, reconstruction, reorganization
or dissolution of the Company, (6) the appointment of a receiver,
administrative receiver, administrator, liquidator or similar officer or
agent or by any circumstances affecting the obligations of the Company to
meet its liabilities or (7) any alteration of the Company's Memorandum or
Articles of Association.
8.7 No proceedings necessary against the Company
The guarantee may be enforced by any Noteholder without first taking steps
or proceedings against the Company.
8.8 Payments by the Guarantor
All sums payable by the Guarantor under this guarantee shall be paid in
sterling to the Noteholders in the manner set out in Condition 11. All
such payments shall be made free and clear of, and without any deduction
or withholding for, or on account of, tax unless the Guarantor is required
to make such withholding or deduction by law and shall also be made in
full and free and clear of, and without any deduction for or on account
of, any set-off or counterclaim.
8.9 Notification of the Rate of Interest
The Company shall, from time to time, notify the Guarantor of the rate of
interest on the Notes as determined by the Company pursuant to Condition
2.
9. Substitution and Exchange
9.1 Rights to Substitute and Exchange
The Company (or, where a substitution or exchange has taken place under
this Clause 9.1, the substitute or exchanged company) shall be entitled,
with the consent of the Guarantor but without the consent of the
Noteholders, to substitute any
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other member of the IMPAC Group as the principal debtor under this
Instrument and the Notes in place of the Company (or of any previously
substituted or exchanged company under this Clause 9.1). In addition, the
Company (or where a substitution or exchange has taken place under this
Clause 9.1, the substituted or exchanged company) shall be entitled with
the consent of the Guarantor to require all or any of the Noteholders to
exchange their Notes for loan notes ("New Loan Notes") issued on the same
terms, mutatis mutandis as the Notes (or any loan notes previously issued
in exchange therefor) by any other member of the IMPAC Group (the "New
Issuer"). The Company (or any substitute or exchanged company) may only
exercise the right of substitution or exchange in this Clause 9.1 if the
Company has received a written opinion in terms satisfactory to it from a
leading taxation Queen's Counsel of at least 10 years standing selected by
the Company to the effect that the proposed substitution or exchange will
not adversely affect the UK tax position of the Noteholders as a class and
in particular will not constitute or cause a disposal of the Notes for the
purposes of United Kingdom taxation (the "Opinion") and has given to the
Noteholders not less than 21 days notice of its intention to effect the
substitution or exchange accompanied by a copy of the Opinion and of the
instructions in respect of which it was given.
9.2 Method and Effect of Substitution
(A) The Company, any substitute company and any New Issuer (as the case
may be) shall be entitled to exercise its rights of substitution
referred to in Clause 9.1 by means of an instrument (the
"Substitution Instrument") pursuant to which the substitute company
shall agree to be bound by the terms of this Instrument as fully as
if the substitute company had been named in this Instrument and on
the Notes as the principal debtor in place of the Company (or of any
previous substitute company or New Issuer). The Substitute
Instrument shall be executed as a deed by the Company (or any
previously substituted company, as the case may be), the substitute
company and the Guarantor in such form as they agree. The
Substitution Instrument shall not be executed until 21 days have
elapsed from the giving of the notice referred to in Clause 9.1. A
copy of the Substitution Instrument shall be made available for
inspection by the Noteholders.
(B) Not later than 14 days after the execution of the Substitution
Instrument, notice of the substitution will be given to the
Noteholders. Such notice shall also give details of the place in
England and Wales where copies of the Substitution Instrument, the
Opinion and the relevant instructions to counsel may be inspected.
The non-receipt of any notice (whether pursuant to this Clause 9.2
(B) or Clause 9,1) by, or the accidental omission to give notice to,
any Noteholder shall not invalidate any substitution pursuant to
this Clause 9.
(C) Upon the execution of the Substitution Instrument, the substituted
company will be deemed to be named in this Instrument and on the
Notes
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as the principal debtor in place of the Company (or of any
previously substituted company or New Issuer) as provided in the
Substitution Instrument and references to the Company in this
Instrument and on the Notes shall, if such substitution occurs and
where the context so permits, be deemed to be references to such
substitute company. The existing certificates held by the
Noteholders in respect of the Notes (including the Conditions
endorsed thereon) shall not be cancelled, but shall remain valid in
relation to the new substitute company as aforesaid.
(D) Upon the execution of the Substitution Instrument and compliance
with the other provisions of Clause 9.1, all of the rights and
obligations of the Company (or any previously substituted company or
New Issuer) under this Instrument and the Notes shall cease and be
terminated, and shall be assumed by the new substitute company.
9.3 Method and Effect of Exchange
(A) The Company, any substitute company and any New Issuer (as the case
may be) shall be entitled to exercise its rights of exchange
referred to in Clause 9.1 by means of an instrument (the "Exchange
Instrument") which shall be executed as a deed by the Company, the
New Issuer and the Guarantor in such form as they agree. The
Exchange Instrument shall not be executed until 21 days have elapsed
from the giving of the notice referred to in Clause 9.1. A copy of
the Exchange Instrument and the Opinion shall be made available for
inspection by the Noteholders.
(B) Not later than 14 days after execution of the Exchange Instrument,
the Company (or any previous substitute company or New Issuer, as
the case may be) shall serve notice of such exchange on the
Noteholders. Such notice shall also give details of the place in
England and Wales where copies of the Exchange Instrument, the
Opinion and the relevant instructions to counsel may be inspected.
The non-receipt of notice (whether pursuant to this Clause 9.3 (B)
or Clause 9.1) by, or the accidental omission to give notice
(whether pursuant to this Clause 9.3 (B) or Clause 9.1) to, any
Noteholder shall not invalidate any exchange pursuant to this Clause
9.
(C) The notice shall also state that the Noteholders shall not be
entitled to receive any New Loan Notes until they have delivered the
certificate evidencing the Notes to be exchanged to an address
specified in the notice. Within 14 days of receipt of such
certificates, or other evidence of title or indemnity, satisfactory
to the New Issuer, the New Issuer shall send the New Loan Notes to
the Noteholder's address stated on the Register, or to such other
address in the United Kingdom as is notified to the New Issuer by
the Noteholder.
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(D) Upon the execution of the Exchange Instrument and the issue of the
New Loan Notes all of the rights and obligations of the Company (or
any previous New Issuer) under this Instrument and the Notes shall
cease and be terminated and shall be assumed by the New Issuer.
10. Copy of instrument
Each Noteholder shall be entitled to receive a copy of this Instrument without
charge on application to the Company.
11. Rights of the Company
Without prejudice to all other powers of the Company, or any of the provisions
of the Articles of Association of the Company, nothing contained in this
Instrument shall prevent the Company or any member of the IMPAC Group from:
(A) exercising its borrowing powers in such manner as is permitted by its
Articles of Association or by resolution of its shareholders; or
(B) charging or otherwise encumbering or permitting or procuring any of its
subsidiaries to charge or otherwise encumber, whether by means of a
debenture, mortgage or otherwise, or disposing of, all or any part of its
assets, business or undertaking; or
(C) making any change in the nature of its business or that of its
subsidiaries.
12. Overseas registration
The Notes issued pursuant to this Instrument have not been and will not be
registered under the United States Securities Act of 1933, as amended (the
"Securities Act"), or under any relevant securities laws of any state or
district of the United States, Canada, Australia, Japan or any other country.
Accordingly, unless an exemption under such act or laws is available, the Notes
may not be offered, sold, resold or delivered, directly or indirectly, by any
person in or into the United States, Canada, Australia or Japan or to any U.S.
person (as defined in Regulation S under the Securities Act).
13. Modification of this Instrument, the Notes and/or the Conditions
This Instrument, the Notes and/or the Conditions may be amended by a
supplemental instrument executed by the Company and the Guarantor with the
sanction of an Extraordinary Resolution of the Noteholders.
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14. Counterparts
This Instrument, may be entered into in two Counterparts, one executed by the
Company and one by the Guarantor each of which, when executed and delivered,
shall be an original but both Counterparts together shall constitute one and the
same Instrument.
15. Waiver and Exercise of Rights
15.1 The failure by any Noteholder to enforce at any time or for any period any
one or more of the provisions of this Instrument and/or the Conditions
shall not be a waiver of them or of the right at any time subsequently to
enforce all the terms of this Instrument and the Conditions in accordance
with their terms.
15.2 All rights in this Instrument or by the Conditions shall be cumulative and
no exercise by a Noteholder of any right shall restrict or prejudice the
exercise of any other right and no exercise of any remedy shall preclude
the exercise of any other remedy.
16. Governing law and jurisdiction
16.1 Governing law
This Instrument and the Notes shall be governed by, and construed in
accordance with, English law.
16.2 Jurisdiction
The English Courts shall have exclusive jurisdiction to determine any
matter or settle any disputes arising out of or relating to this
Instrument. In relation to any legal action or proceedings to enforce the
terms of Clause 8 or arising out of or in connection with Clause 8
("Proceedings"), the Guarantor irrevocably submits to the exclusive
jurisdiction of the English courts and waives any objection to Proceedings
in such courts on the grounds of venue or on the grounds that Proceedings
have been brought in an inappropriate forum. This Clause 16.2 operates for
the benefit of the Noteholders who shall retain the right to take
Proceedings in any other court having jurisdiction.
16.3 Waiver of Immunity
To the extent that the Guarantor may be entitled in any jurisdiction to
claim for itself or its assets immunity from any suit, execution,
attachment (whether provisional or final, in aid of execution, before
judgment or otherwise) or other legal process or to the extent that in any
jurisdiction such immunity (whether or not claimed) may be attributed to
it or its assets, it irrevocably agrees not to claim and irrevocably
waives such immunity to the fullest extent permitted by the laws of such
jurisdiction.
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IN WITNESS WHEREOF this Instrument has been duly executed by the Company and the
Guarantor as a deed on the date and year first above written.
14
SCHEDULE 1: FORM OF CERTIFICATE FOR THE NOTES
Certificate No. _____________ Amount of Notes (pound)______________
IMPAC EUROPE PUBLIC LIMITED COMPANY
(incorporated in England and Wales under
the Companies Xxx 0000 under number 3487779)
_______________________
UNSECURED GUARANTEED FLOATING RATE LOAN NOTES 1999/2003
Issued pursuant to the Memorandum and Articles of Association of IMPAC Europe
Public Limited Company (the "Company") and created by resolution of a duly
authorised committee of the Board of Directors of the Company passed on
[ ] 1998.
THIS IS TO CERTIFY THAT ________________________________________________________
________________________________________________________________________________
of _____________________________________________________________________________
is/are the registered holder(s) of the above amount of Unsecured Guaranteed
Floating Rate Loan Notes 1999/2003 of the Company (the "Notes") which are
constituted by an Instrument (the "Instrument") dated 10 September 1998 and made
by the Company and Bank of America National Trust and Savings Association (the
"Guarantor") and are issued with the benefit of and subject to the provisions
contained in the Instrument and the Conditions endorsed hereon. Unless the
context otherwise requires, words and expressions defined in the Instrument
shall bear the same meanings where used in such Conditions.
Interest (less any applicable tax) is payable on the Notes represented by this
certificate as specified in the Conditions endorsed hereon. The Notes are
subject to redemption in accordance with Condition 3.
Payments of principal and interest under the Notes are guaranteed by the
Guarantor on and subject to the terms and conditions set out in the Instrument
and the Conditions.
The Notes and the Instrument are governed by and shall be construed in
accordance with English law.
15
IN WITNESS whereof IMPAC Europe Public Limited Company has executed this Note on
[ ] September 1998.
SIGNED by ) .........................
and by ) Director
and thereby executed by )
IMPAC EUROPE PUBLIC )
LIMITED COMPANY )
as its Deed ) .........................
Director/Secretary
Date:
NOTES:
1. Subject as described in note 2 below, the Notes are registerable and
transferable in amounts and multiples of (pound)1.00. No transfer of the
whole or any part of the Notes represented by this certificate will be
registered without the production of this certificate or such evidence and
indemnity therefor as specified in the Conditions endorsed hereon.
2. These Notes have not been and will not be registered under the United
States Securities Act of 1933, as amended (the "Securities Act"), or under
any relevant securities laws of any state or district of the United
States, Canada, Australia, Japan or any other country. Accordingly, unless
an exemption under such act or laws is available, the Notes may not be
offered, sold, resold or delivered, directly or indirectly, by any person
in or into the United States, Canada, Australia or Japan or to any U.S.
person (as defined in Regulation S under the Securities Act).
3. Each Noteholder is entitled to receive a copy of the Instrument without
charge, on application to the Company.
16
THE CONDITIONS
1. Status
The Notes are issued in registered form in amounts and integral multiples of
(pound)1.00 and constitute unsecured obligations of the Company guaranteed by
Bank of America National Trust and Savings Association on and subject to the
terms and conditions contained in the Instrument. The Instrument pursuant to
which the Notes are issued does not contain any restrictions on borrowing,
disposing or charging of assets by the Company or any member of the IMPAC Group.
2. Interest
2.1 Interest Periods
Interest on the Notes will be payable (subject to any requirement to
deduct any applicable tax therefrom) twice yearly in arrears on 30 June
and 31 December or, if any such day is not a Business Day, on the
immediately preceding Business Day (each an "Interest Payment Date") in
each year in respect of the Interest Periods (as defined below) running to
(but excluding) those dates at the rate specified in Condition 2.2, except
that the first payment of interest on the Notes, which will be made on 31
December 1998, will be in respect of the period from and including the
first date of issue of any of the Notes up to (but excluding) 31 December
1998. The period from and including the first date of issue of any of the
Notes up to (but excluding) 31 December 1998 and the period from (and
including) 31 December 1998 or any subsequent Interest Payment Date up to
(but excluding) the next following interest payment date is herein called
an "Interest Period".
Interest shall be payable in each case only to persons who are registered
as Noteholders at the close of business on the relevant record date. The
"record date" shall mean the 30th day before the relevant Interest Payment
Date.
2.2 Interest Rate
The rate of interest on the Notes for each Interest Period will be the
rate per annum calculated by the Company to be one per cent. below the
average (rounded down where necessary to the nearest whole multiple of
one-sixteenth of one per cent.) of the respective rates per annum at which
any two London clearing banks selected by the Company are prepared to
offer six month sterling deposits of an amount equal to the amount of
Notes then outstanding (or as near thereto as practicable) to leading
banks in the London Inter-bank Market for sterling at or about 11.00 a.m.
(London time) on each of the last three Business Days immediately
preceding the commencement of the relevant Interest Period.
17
If the rate of interest cannot be established in accordance with the
previous paragraph of this Condition 2.2 for any relevant Interest Period,
then the rate of interest on the Notes for such Interest Period shall be
such rate per annum as the Company shall determine on the basis of any two
rates quoted to the Company for six month deposits of an amount equal to
the outstanding principal amount of the Notes then outstanding in such
other inter-bank market or markets as the Company may select, to be one
per cent. below the average (rounded down, where necessary, to the nearest
whole multiple of one sixteenth of one per cent) of the rates so quoted
and, if a rate of interest cannot be established in accordance with the
foregoing provisions of this paragraph for such Interest Period, then the
rate of interest on the Notes for such Interest Period shall be the same
as that applicable to the Notes during the previous Interest Period unless
in any such case any one clearing bank as is referred to in the previous
paragraph of this Condition 2.2 shall have been prepared to offer a rate
as aforesaid in which case the rate of interest in respect of the relevant
Interest Period will be calculated as if such rate were the average
referred to in the previous paragraph.
2.3 Accrual
Interest shall accrue from day to day and shall be calculated on the basis
of a 365 day year (or, in the case of a leap year, a 366 day year) and the
actual number of days elapsed in the relevant Interest Period.
2.4 Certification
The certificate of the Company as to the rate of interest applicable in
any Interest Period shall, save in the case of manifest error, be
conclusive and binding on the Noteholders.
3. Repayment
3.1 Redemption date
Unless previously repaid or purchased and cancelled, the Notes will be
repaid by the Company in full at par on 30 June 2003 (or, if such date is
not a Business Day, on the immediately preceding Business Day) together
with accrued interest up to but excluding the date of repayment (subject
to any requirement to deduct any applicable tax therefrom).
3.2 Redemption at Option of Noteholder
(A) A Noteholder may require the whole or any part (being a nominal
amount of (pound)100 or an integral multiple thereof) of the
principal amount of any Notes held by him to be repaid at par,
together with accrued interest (subject to any requirement to deduct
any applicable tax therefrom) up to, but excluding, the date of
payment, on the last day of each calendar
18
quarter (being 31 March, 30 June, 30 September and 31 December or if
any such day is not a Business Day on the immediately preceding
Business Day) (each a "Quarter Date") falling on or after 30 June
1999 but prior to 30 June 2003 (any such date being a "Repayment
Date") by giving to the Company not less than 30 days' notice in
writing to expire on or before the relevant Quarter Date. No such
notice may be given in respect of Notes which are the subject of a
notice of redemption already given by the Company pursuant to
Condition 3.3.
(B) Such right shall be exercisable by the Noteholder concerned by
completing and signing a Notice of Repayment in the form printed on
the certificate comprising or including the Notes to be repaid (or
in such other form as the Directors may approve) and depositing the
same at the Company's registered office or, if different, the
Transfer Office not less than 30 days before the relevant Repayment
Date accompanied by such evidence (if any) as the Directors may
reasonably require to prove the title of the person requiring
repayment where such person is not the registered Noteholder. A
notice given to the Company in accordance with this Condition shall,
except with the consent of the Company, be irrevocable.
(C) Against such delivery, the Company shall on the relevant Repayment
Date pay to the Noteholder concerned the principal amount of his
Notes or, as the case may be, the part thereof to be repaid,
together with interest accrued up to (but excluding) the date of
repayment (subject to any requirement to deduct any applicable tax
therefrom) and in the case of partial redemption shall issue and
deliver to the Noteholders a certificate for the balance of the
Notes which remain unredeemed.
3.3 Redemption at Option of Company
(A) If, at any time the nominal amount of all of the Notes outstanding
is less than (pound)250,000, the Company has the right on giving to
the holders of outstanding Notes not less than 30 days' notice in
writing (such notice not to take effect prior to 30 June 1999) to
redeem all (but not some only) of the outstanding Notes by payment
of the nominal amount thereof together with accrued interest
(subject to any requirement to deduct any applicable tax therefrom)
up to (but excluding) the date of repayment.
(B) If at any time any payment of interest in respect of the Notes would
fail to be treated as a distribution by the Company for United
Kingdom corporation tax purposes, the Company has the right on
giving not less than 30 days' notice in writing to the Noteholders
to redeem all (but not some only) of the Notes at par together with
accrued interest (subject to any requirement to deduct any
applicable tax therefrom) up to (but excluding) the date of
repayment.
19
(C) Notwithstanding the provisions of Condition 3.3(A) above, the
Company has the right on the death or bankruptcy of a Noteholder by
giving not less than 30 days' notice expiring on any Business Day
after the first anniversary of the date of death or making of the
bankruptcy order to the personal representatives or trustee
(respectively) of such Noteholder, or (in the case of bankruptcy
only) the Noteholder himself, to redeem all (but not some only) of
the outstanding Notes held by such Noteholder (whether alone or
jointly with any other persons) by payment of the nominal amount
thereof together with accrued interest (subject to any requirement
to deduct any applicable tax therefrom) up to (but excluding) the
date of repayment.
3.4 Events of Default
Notwithstanding any other provision of the Instrument, but subject to
these Conditions, each Noteholder shall be entitled to require, upon
written notice by such Noteholder to the Company, all or any part (being
(pound)1 nominal amount or any multiple thereof) of the Notes registered
in the name of that Noteholder (so far as not previously redeemed or
repaid and unless otherwise agreed by that Noteholder) to be immediately
repaid at par together with accrued interest up to but excluding the date
of payment (less any applicable tax required to be deducted therefrom) if:
(A) any principal or interest on any of the Notes held by that
Noteholder shall fail to be paid in full within 30 days after the
due date for payment thereof; or
(B) an order is made by a competent court or an effective resolution is
passed for the winding-up or dissolution of the Company (other than
for the purposes of a solvent reconstruction or a solvent
amalgamation or a members' voluntary winding-up on terms previously
approved by an Extraordinary Resolution of Noteholders); or
(C) an encumbrancer takes possession or a trustee, receiver,
administrator, administrative receiver or similar officer is
appointed or an administration order is made in respect of the
Company or in respect of all or substantially all of the undertaking
of the Company and such person has not been paid out or discharged,
or the order stayed, within 30 days.
The Company shall notify the Noteholders forthwith upon it becoming aware
of the occurrence of any of the events specified in this Condition 3.
4. Purchase
The Company may at any time by agreement with the relevant Noteholders purchase
any Notes at any price by tender, private treaty or otherwise.
20
5. Cancellation
Any Notes repaid under Condition 3 or purchased under Condition 4 will be
cancelled and will not be available for re-issue.
6. Guarantee
6.1 Any payment made by the Guarantor under Clause 8 of the Instrument to any
Noteholder or other person deriving title therefrom shall pro tanto
discharge the obligations of the Company to make payment of such amount
under these Conditions and/or the Notes and/or the Instrument.
6.2 Under Clause 8 of the Instrument, the Guarantor guarantees, irrevocably
and subject to the terms and conditions of the Instrument, to each of the
Noteholders that, if the Company does not pay any amount payable by it
under the Notes by the time and on the date specified in these Conditions
for such payment (whether on the normal due date, on acceleration or
otherwise), the Guarantor will pay that sum to the relevant Noteholder
within five Business Days of demand being made therefor in writing by the
relevant Noteholder or person claiming thereunder Provided that the amount
payable hereunder in respect of each (pound)1.00 Note shall not at any
time and from time to time exceed
(A) in the case of principal, (pound)1.00; and
(B) in the case of interest, an amount calculated in accordance with the
following formula:
A = B/C
where
A = the maximum amount of interest recoverable from the Guarantor in
respect of such (pound)1 of principal at such time;
B = (pound)375,000 less an amount equal to the aggregate of all
amounts (if any) paid by the Guarantor under the Instrument in
respect of interest prior to such time; and
C = the aggregate principal amount of Notes which have been issued and
not redeemed or repaid by the Company as most recently certified by
the Company to the Guarantor pursuant to Clause 8.2 of the
Instrument.
21
6.3 Demands given to the Guarantor under the Instrument must be made in
accordance with Clause 8 thereof, in writing and addressed and delivered
to the Guarantor at its London branch at 0 Xxxx Xxxxxx, Xxxxxx Xx 0XX
marked for the attention of Trade Finance Department, Ref: 6008GT 003823
/98 and must specify the full name and registered address of the
Noteholder, the amount payable but unpaid by the Company (if known) and
the date on which such amount fell due.
7. No set-off
All payments to be made under the Instrument and these Conditions shall be made
without set-off or counterclaim and without any withholding or deduction for or
on account of tax other than as required by law from time to time.
8. Modification
The provisions of the Instrument and the rights of the Noteholders are subject
to modification, abrogation or compromise in any respect with the sanction of an
Extraordinary Resolution (as defined in Schedule 3 to the Instrument) of the
Noteholders and the consent of the Company and the Guarantor.
9. Further issues of Notes
9.1 Subject to the terms of the Offer and the limit in Clause 2.1 of the
Instrument, the Company shall be at liberty (and without the consent of
any then existing Noteholders or the Guarantor) to create and issue Notes
by way of consideration under the Offer.
10. Delivery up of certificates
10.1 Personal Representatives and Trustees in Bankruptcy
References to a "Noteholder" in this Condition 9 shall, where the
situation relates to a redemption pursuant to Condition 3.3 (C), be deemed
to be references to either the Noteholder or the personal representatives
or trustee in bankruptcy of such Noteholder, as the Company may in its
reasonable discretion determine.
10.2 Delivery up of Certificates
On the date and at the place fixed for redemption, each Noteholder whose
Notes are to be redeemed may be required to deliver to the Company the
certificate or certificates therefor. Upon such delivery (if required) and
against an appropriate discharge by the Noteholder for the repayment money
(if required) the Company shall pay to the Noteholder the amount payable
to him in respect of such repayment and such repayment may be made through
a bank if the Company shall think fit.
22
10.3 Deposit of Redemption Monies
If the Company shall require a Noteholder, any of whose Notes are liable
to be repaid under these Conditions or the Instrument, to deliver to the
Company the certificate or certificates therefor and such Noteholder shall
fail or refuse to deliver up the certificate or certificates therefor or
to provide an indemnity in a form acceptable to the Directors on the date
and at the place fixed for the repayment thereof or if a Noteholder shall
fail or refuse to accept payment of the redemption moneys payable in
respect thereof, the moneys payable to such Noteholder may be set aside by
the Company and paid into a separate bank account and held by the Company
in trust for such Noteholder (on terms that if the failure or refusal
which resulted in the payment being made into the bank account is remedied
then payment of such moneys shall be made to the Noteholder on demand) and
such setting aside and payment shall be deemed for all the purposes of
these Conditions to be a payment to such Noteholder and the Company shall
(without prejudice to the terms of such trust as aforesaid) thereby be
discharged from all obligations in connection with such Notes. If the
Company shall place the moneys so set aside on deposit at a bank (being an
authorised institution under the Banking Act 1987) the Company shall not
thereby be responsible for the safe custody of such moneys or for interest
thereon except such interest (if any) as the said moneys may earn whilst
on deposit less any expenses incurred by the Company in connection
therewith. Any such amount so paid or deposited which remains unclaimed
after a period of six years in the case of interest, and 12 years in the
case of principal from the date on which the relevant payment first became
due shall revert to the Company and the relevant Noteholders shall cease
to be entitled thereto, notwithstanding that, in the intervening period,
the obligation to pay the same may have been accounted for in the books,
accounts and other records of the Company.
11. Manner of payment
11.1 Interest and Principal
The interest payable in respect of any Notes (less any tax required to be
deducted therefrom) and a payment of principal owing on the Notes or any
part thereof shall be paid by cheque or warrant or in such other manner as
may be agreed by the Company and the relevant Noteholder (and, in the case
of payments to be made by the Guarantor, agreed by the Guarantor):
(A) made payable to and sent to the registered holder thereof at his
registered address; or
(B) in the case of joint registered holders made payable to and sent to
that one of the joint registered holders who is first named on the
Register in respect of such Notes at his registered address; or
23
(C) made payable to such person or persons and sent to such address as
the registered holder or all the joint registered holders may in
writing, received by the Company or, in the case of payments to be
made by the Guarantor, the Guarantor at least 15 Business Days prior
to the date of payment, to the Company or, as the case may be, the
Guarantor direct.
11.2 Death or bankruptcy
On a redemption of Notes by the Company pursuant to Condition 3.3
following the death or bankruptcy of a Noteholder the Company may, in its
absolute discretion, pay any amount which would otherwise under this
Condition 11 be payable to such Noteholder to his personal representatives
or his trustee (as the case may be) on such person producing such proof of
appointment as the Directors may reasonably require.
11.3 Post
Every such cheque or warrant shall be sent through the post in a pre-paid
cover at the risk of the person entitled to the moneys represented thereby
and payment of any such cheque or warrant by the banker upon whom it is
drawn shall be a satisfaction of the moneys represented thereby.
11.4 Unpaid Interest
No unpaid interest shall bear interest against the Company or the
Guarantor.
12. Notices
12.1 Post
Any notice or other document (including a certificate for Notes) may be
served on or delivered to any Noteholder by the Company either personally
or by sending it through the post in a pre-paid cover addressed to such
Noteholder at his registered address or (if he has no registered address
within the United Kingdom) to the address, if any, within the United
Kingdom supplied by him to the Company as his address for the service of
notices, or by delivering it to such address, addressed as aforesaid. Any
notice or document served on or delivered to that one of the joint holders
of any Notes whose name stands first in the Register in respect of such
Notes shall be sufficient notice to or service on all the joint holders in
their capacity as such. For such purpose a joint holder having no
registered address in the United Kingdom and not having supplied an
address within the United Kingdom for the service of notices shall be
disregarded.
24
12.2 Death or bankruptcy
Notice may be given to the persons entitled to any Notes in consequence of
the death or bankruptcy of any Noteholder by sending the same by post in a
pre-paid cover addressed to them by name or by the title of the personal
representatives or trustees of such holder at the address (if any) in the
United Kingdom supplied for the purpose by such persons or (until such
address is supplied) by giving notice in the manner in which it would have
been given if the death or bankruptcy had not occurred.
12.3 Delivery
Where a notice or other document is served or delivered by post, service
or delivery shall be deemed to be effected at the expiration of 24 hours
(or, where second-class mail is employed, 48 hours) after the time when
the cover containing the same is posted and in proving such service or
delivery it shall be sufficient to prove that such cover was properly
addressed, stamped and posted.
12.4 United Kingdom
A Noteholder who, having no registered address within the United Kingdom,
has not supplied to the Company an address within the United Kingdom for
the service of notices shall not be entitled to receive notices from the
Company.
25
NOTICE OF REPAYMENT
To: The Company
1. Repayment
I/We, being the registered holder(s) of the Notes represented by this
certificate, hereby give notice that I/we require repayment of
*all/(pound)[ ] of the Notes in accordance with Condition 3 endorsed
hereon. (* Delete or Complete as appropriate. Repayment of part only must be in
principal amounts or multiples of (pound)100. if no indication is given of the
amount of the Notes to be repaid, all of such Notes will be repaid.)
2. Method of repayment
I/We authorise and request you:
(A) to make the cheque or warrant payable to the person whose name is
set out in the box below or, if none is set out, to me/the
first-named of us; and
(B) to send it by post in a pre-paid cover at my/our risk to the person
whose name and address is set out in the box below or, if none is
set out, to the registered address of the sole or first-named
holder.
3. Balance certificate
I/We hereby authorise the despatch of a certificate for the balance (if any) of
the Notes represented by this certificate which is not repaid by post in a
pre-paid cover at my/our risk to the person whose name and address is set out in
the box below or, if none is set out, to the sole or first-named holder at
his/her registered address.
Signature(s) of Noteholder(s) [ ]
[ ]
[ ]
[ ]
In the case of joint holders ALL must sign. A body corporate should execute
under its common seal or under the hand of some officer or attorney duly
authorised in that behalf.
Dated [ ] , [ ].
----------------
26
Please insert in BLOCK CAPITALS in the box below the name of the person to whom
you wish the cheque or warrant to be made payable (if not to you) and/or the
address within the United Kingdom of the person to whom you wish the cheque or
warrant and any balance certificate to be sent if it is different from that of
the sole or first-named holder of the relevant Notes. If the box is left blank,
the cheque or warrant will be made payable to the sole holder of the relevant
Notes or the first-named holder of the relevant Notes on the Register in respect
of joint holders and it and any balance certificate will be sent to the
registered address of the such sole holder or first-named holder.
-----------------------------------
Name:..............................
Address:...........................
...................................
...................................
-----------------------------------
27
SCHEDULE 2: REGISTRATION AND TRANSFER
1. Registered holder
Except as required by law, the Company will recognise the registered holder of
any Notes as the absolute owner thereof and shall not be bound to take notice of
or see to the execution of any trust whether express implied or constructive to
which any Notes may be subject and the receipt of the registered holder of any
Notes or, if two or more persons are registered as joint holders of any Notes or
are entitled jointly to any Notes in consequence of the death or bankruptcy of
the holder, the receipt of any of them for the principal, interest or other
moneys payable on or in respect of such Notes or payment of a cheque or warrant
sent by post pursuant to the Conditions contained in Schedule 1 shall be a good
discharge to the Company and notwithstanding any notice either may have (whether
express or otherwise) of the right, title, interest or claim of any other person
to or in such Notes, interest or moneys. No notice of any trust express, implied
or constructive shall (except as aforesaid) be entered in the Register in
respect of any Notes.
2. Entitlement
Every Noteholder will be recognised by the Company as entitled to his Notes free
from any equity set-off or cross-claim on the part of the Company against the
original or any intermediate holder of the Notes.
3. Method of transfer
Subject to Clause 11, the Notes are transferable in whole or in part in nominal
amounts or multiples of (pound)1.00 by instrument in writing in the usual or
common form (or in any other form which the Directors may approve). Every
instrument of transfer must be signed by or on behalf of the transferor but need
not be signed by or on behalf of the transferee. The transferor shall be deemed
to remain the holder of the Notes concerned until the name of the transferee is
entered in the Register in respect thereof. The Company shall not be obliged to
give effect to any such instrument which purports to transfer any Notes in
respect of which notice of repayment shall have been given or any other security
in addition to the Notes or which is not in compliance with applicable law.
4. Documents required for transfer
Every instrument of transfer must be delivered for registration to the Transfer
Office accompanied by the certificate for the Notes to be transferred and such
other evidence as the Directors may require to prove the title of the transferor
or his right to transfer the Notes and, if the instrument of transfer is
executed by some other person on his behalf, the authority of that person so to
do and, if so required by the Directors, evidence that the transferee is not a
U.S. Person (as defined in Clause 11 below). All instruments of transfer which
are registered may be retained by the Company for so long as it thinks fit
together with the cancelled certificates for the Notes. if the transfer of any
Notes is of part only of
28
the Notes represented by any certificate the Company shall issue and deliver to
the transferring Noteholder a certificate for the balance which is not
transferred.
5. Charges
The Company may, at its reasonable discretion, levy reasonable charges for the
registration of any transfer or for the registration of any probate, letters of
administration, certificate of marriage or death, power of attorney or other
document relating to or affecting the title to any Notes or otherwise for making
any entry in the Register affecting the title to any Notes.
6. Suspension
The registration of transfers may be suspended at such times and for such
periods as the Directors may from time to time determine provided that such
registration shall not be suspended for more than 30 days in any one year.
7. Transfer of title
In the case of the death of a Noteholder, the survivors or survivor, where the
deceased was a joint holder, and the executors or administrators of the
deceased, where he was a sole or only surviving holder, shall be the only
persons recognised by the Company as having any title to such Notes.
8. Death or bankruptcy
8.1 Any person becoming entitled to Notes in consequence of the death or
bankruptcy of a Noteholder may, upon supplying to the Company such
evidence as the Directors may reasonably require to show his title to the
Notes elect to be registered himself as the holder of such Notes or,
subject to the preceding paragraphs as to transfer, to transfer such
Notes.
8.2 The Company shall be at liberty to withhold payment of all moneys payable
in respect of Notes to which this paragraph applies until such person
shall be registered or shall have duly transferred the same as aforesaid.
8.3 The Directors shall also have power by notice in writing to require any
such person as aforesaid to elect to transfer the Notes in question or to
be registered as the holder thereof and, in the event of his failing so to
elect within 60 days of being required so to do, he shall be deemed to
have elected to be registered as the holder of the Notes and may be
registered accordingly.
8.4 The provisions of this Clause 8 shall not affect the ability of the
Company to exercise its right of redemption on the death or bankruptcy of
a Noteholder under Condition 3.3(C).
29
9. Replacement certificates
if any certificate for Notes shall be damaged or defaced then upon delivery up
thereof to the Directors they shall cancel the same and shall issue a new
certificate in lieu thereof and if any certificate for the Notes shall be lost,
stolen or destroyed then upon proof thereof to the satisfaction of the Directors
and compliance with such Conditions as to evidence and indemnity and the payment
of out-of-pocket expenses of the Company in connection therewith as the
Directors may think fit a new certificate in lieu thereof will be issued. An
entry as to the issue of the new certificate and indemnity (if any) shall be
made in the Register.
10. Overseas Registration
The Notes issued pursuant to this Instrument have not been and will not be
registered under the United States Securities Act of 1933, as amended (the
"Securities Act"), or under any relevant securities laws of any state or
district of the United States, Canada, Australia, Japan or any other country.
Accordingly, unless an exemption under such act or laws is available, the Notes
may not be offered, sold, re-sold or delivered, directly or indirectly, by any
person in or into the United States, Canada, Australia or Japan or to any U.S.
person (as defined in Regulation S under the Securities Act).
30
SCHEDULE 3: MEETINGS OF NOTEHOLDERS
1. Right to call
The Company may, and shall at the request in writing of persons holding not less
than 15 per cent. in nominal amount of the Notes, convene a meeting of
Noteholders. Any such meeting shall be held at such place in England as the
Directors shall determine.
2. Notice period
At least 14 days' notice or, in the case of a meeting at which it is proposed to
pass an Extraordinary Resolution, at least 21 days' notice (exclusive in each
case of the day on which the notice is served or deemed to be served and of the
day on which the meeting is to be held) of every meeting shall be given in the
manner provided in the Conditions to all Noteholders other than such as are not
under the provisions of the Conditions entitled to receive such notices. The
notice shall specify the place day and hour of meeting and the general nature of
the business to be transacted thereat but (except in the case of an
Extraordinary Resolution) it shall not be necessary to specify in the notice the
terms of any resolution to be proposed. The accidental omission to give notice
to or the non-receipt of notice by any Noteholder entitled thereto shall not
invalidate the proceedings at any meeting.
3. Quorum
At any meeting other than a meeting at which it is proposed to pass an
Extraordinary Resolution two Noteholders present in person or by proxy and
holding or representing not less than one-tenth in nominal amount of the Notes
for the time being outstanding shall be a quorum. The quorum at any meeting at
which it is proposed to pass an Extraordinary Resolution shall be two
Noteholders present in person or by proxy and holding or representing not less
than one third in nominal amount of the Notes for the time being outstanding. No
business (other than the choosing of a Chairman) shall be transacted at any
meeting unless the requisite quorum is present at the time when the meeting
proceeds to business.
if within 15 minutes from the time appointed for the meeting (or such longer
period as the Chairman of the meeting may think fit to allow) a quorum is not
present the meeting, if convened on the requisition of Noteholders, shall be
dissolved. In any other case it shall stand adjourned to such other day and such
time (being not less than 14 days nor more than 42 days thereafter) and place as
may be appointed by the Chairman. At such adjourned meeting, the Noteholders
present in person or by proxy, whatever the number of persons or the nominal
value of the Notes held by them, shall form a quorum and shall have power to
pass any Extraordinary Resolution or other resolution and to decide upon all
matters which could properly have been disposed of at the meeting from which the
adjournment took place.
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At least seven days' notice (exclusive as aforesaid) of any such adjourned
meeting of Noteholders at which an Extraordinary Resolution is to be proposed
shall be given in the same manner mutatis mutandis as for the original meeting
and such notice shall state that the Noteholders present in person or by proxy
at the adjourned meeting will form a quorum.
4. Chairman
Some person (who may but need not be a Noteholder) nominated in writing by the
Company shall preside as Chairman at every meeting and, if no such person is
nominated or if at any meeting the person nominated shall not be present within
15 minutes after the time appointed for holding the meeting and the Company
makes no further nomination, the Noteholders present shall choose one of their
number to be Chairman. Any Director and the secretary, solicitors, auditors and
financial advisers of the Company and any other person authorised in that behalf
by the Company may attend and speak at any meeting.
5. Right to adjourn
The Chairman of any meeting at which a quorum is present may with the consent of
the meeting and shall if so directed by the meeting adjourn the meeting from
time to time (or sine die) and from place to place but no business shall be
transacted at any adjourned meeting except business which might lawfully have
been transacted at the meeting from which the adjournment took place. Where a
meeting is adjourned sine die, the time and place for the adjourned meeting
shall be fixed by the Directors. When in accordance with this Clause a meeting
is adjourned for 30 days or more or sine die, not less than seven days' notice
(exclusive as aforesaid) of the adjourned meeting shall be given in the same
manner mutatis mutandis as for the original meeting. Save as aforesaid and as
provided in Clause 3 of this Schedule it shall not be necessary to give any
notice of an adjournment or of the business to be transacted at an adjourned
meeting.
6. Voting
At any meeting a resolution put to the vote of the meeting shall be decided on a
show of hands, unless a poll is (before or on the declaration of the result of
the show of hands) demanded by the Chairman or by one or more Noteholders
present in person or by proxy and holding or representing not less than
one-twentieth in nominal amount of the Notes for the time being outstanding
other than Notes in respect whereof notice requiring repayment shall have been
given. Unless a poll is so demanded a declaration by the Chairman that a
resolution has been carried or carried unanimously or by a particular majority
or lost shall be conclusive evidence of that fact without proof of the number or
proportion of the votes recorded in favour of or against such resolution. If a
poll is duly demanded it shall be taken in such manner (including the use of
ballot or voting papers or tickets) as the Chairman may direct and the result of
such poll shall be deemed to be the resolution of the meeting at which the poll
was demanded.
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7. Casting vote
In the case of an equality of votes, whether on a show of hands or on a poll,
the Chairman of the meeting at which the show of hands takes place or at which
the poll is demanded shall be entitled to a casting vote in addition to the vote
or votes (if any) to which he may be entitled as a Noteholder or as a proxy for
a Noteholder.
8. Poll
A poll demanded on the election of a Chairman or on a question of adjournment
shall be taken forthwith. A poll demanded on any other question shall be taken
either immediately or at such time (not being more than thirty days from the
date of the meeting) and place as the Chairman may direct. No notice need be
given of a poll not taken immediately.
9. Continuance
The demand for a poll shall not prevent the continuance of a meeting for the
transaction of any business other than the question on which the poll has been
demanded. The demand for a poll may be withdrawn.
10. Entitlement to vote
On a show of hands every Noteholder who is present in person shall have one
vote. On a poll votes may be given personally or by proxy and every Noteholder
who is present in person or by proxy shall have one vote for every (pound)1.00
in nominal amount of the Notes of which he is the holder. A person entitled to
more than one vote need not use all his votes or cast all the votes he uses in
the same way.
11. Seniority
In the case of joint registered holders of Notes the vote of the senior who
tenders a vote whether in person or by proxy shall be accepted to the exclusion
of the votes of the other joint holders and for this purpose seniority shall be
determined by the order in which the names stand in the Register in respect of
the Notes.
12. Proxies
Every instrument appointing a proxy shall be in writing under the hand of the
appointor or of his attorney or, if such appointor is a corporation, under its
common seal or under the hand of some duly authorised officer or attorney of the
corporation. In the case of an instrument of proxy purporting to be signed on
behalf of a corporation by an officer thereof it shall be assumed unless the
contrary appears that such officer was duly authorised to sign such instrument
of proxy on behalf of the corporation without further evidence of the fact.
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13. Status of proxy
A person appointed to act as a proxy need not be a Noteholder.
14. Appointment of proxies
The instrument appointing a proxy and the letter of power of attorney or other
authority (if any) under which it is signed or a duly certified copy thereof
shall be deposited at such place as may be specified for that purpose in or by
way of note to or in any document accompanying the notice convening the meeting
(or, if no place is specified, at the Transfer Office) at least 48 hours before
the time appointed for holding the meeting or adjourned meeting or (in the case
of a poll taken otherwise than at or on the same day as the meeting or adjourned
meeting) for the taking of the poll at which the person named in the instrument
proposes to vote and in default the instrument of proxy shall not be treated as
valid. No instrument appointing a proxy shall be valid after the expiration of
12 months from the date named in it as the date of its execution.
15. Method of appointment
Every instrument appointing a proxy may be in any usual or common form or in any
other form which the Directors may approve. An instrument appointing a proxy
shall be deemed to include the right to demand or join in demanding a poll. A
proxy whether in the usual or common form or not shall unless the contrary is
stated thereon be valid as well for any adjournment of the meeting as for the
meeting to which it relates and need not be witnessed.
16. Voting powers of proxies
A vote given in accordance with the terms of an instrument of proxy shall be
valid notwithstanding the previous death or insanity of the principal or
revocation of the proxy or of the authority under which the proxy was executed
provided that no intimation in writing of such death, insanity or revocation
shall have been received by the Company at the Transfer Office more than 48
hours before the commencement of the meeting or adjourned meeting or, in the
case or a poll taken otherwise than at or on the same day as the meeting or
adjourned meeting, the time appointed for the taking of the poll at which the
proxy is used.
17. Appointment of representative
Any company or corporation which is a Noteholder may by resolution of its
directors or other governing body authorise any person to act as its
representative at any meeting of the Noteholders and such representative shall
be entitled to exercise the same powers on behalf of the company or corporation
as the company or corporation could exercise if it were a individual Noteholder
and such company or corporation shall for the purpose of these provisions be
deemed to be present in person at any such meeting if a person so authorised is
present thereat.
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18. Additional powers
A meeting of Noteholders shall in addition to all other powers have the
following powers exercisable by Extraordinary Resolution:
18.1 power to sanction any scheme of arrangement or any scheme for the
reconstruction of the Company or for the amalgamation of the Company with
any other company;
18.2 power to sanction the exchange of the Notes for, or the conversion of the
Notes into, shares, stock, debentures, debenture stock or other
obligations or securities of the Company, or any other company formed or
to be formed;
18.3 power to sanction the release of the Company from the payment of all or
any part of the principal moneys and interest owing upon the Notes, and
other moneys payable pursuant to this Instrument;
18.4 power to sanction any modification, abrogation or compromise of, or
arrangement in respect of, the rights of the Noteholders against the
Company whether such rights shall arise under these presents or the
certificates for the Notes or otherwise;
18.5 power to assent to any modification or abrogation of the Conditions to
which the Notes are subject and/or of the provisions contained in these
presents and to authorise the execution of any supplemental deed embodying
any such modification or abrogation;
18.6 power to give any sanction, approval, authority, direction or request
which under any of the provisions of these presents is required to be
given by Extraordinary Resolution; and
18.7 power to appoint any persons (whether Noteholders or not) as a committee
to represent the interests of the Noteholders and to confer upon such
committee any powers or discretions which the Noteholders could themselves
exercise
PROVIDED THAT no modification of the said Conditions or provisions shall take
effect unless and until the Company and the Guarantor shall have consented and
agreed thereto.
19. Extraordinary resolutions
An Extraordinary Resolution passed at a meeting of the Noteholders duly convened
and held in accordance with these presents shall be binding upon all the
Noteholders whether or not present at the meeting and each of the Noteholders
shall be bound to give effect thereto accordingly.
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20. Resolutions in writing
A resolution in writing signed by Noteholders who for the time being are
entitled to receive notice of meetings in accordance with the provisions herein
contained and hold not less than 75 per cent. in nominal amount of the Notes
shall for all purposes be as valid and effectual as an Extraordinary Resolution
passed at a meeting duly convened and held in accordance with the provisions
herein contained and may consist of several documents in the like form each
signed by or on behalf of one or more of the Noteholders. In the case of a
corporation the resolution may be signed on its behalf by a Director or the
secretary thereof or by its duly authorised representative or duly appointed
attorney.
21. Meaning of Extraordinary resolution
The expression "Extraordinary Resolution" means a resolution passed at a meeting
of the Noteholders duly convened and held in accordance with the provisions
herein contained and carried by a majority consisting of not less than 75 per
cent. of the persons voting thereat upon a show of hands or, if a poll is duly
demanded, by not less than 75 per cent. of the votes given on such a poll,
whether such votes are cast in person, by authorised representative, or by
proxy.
22. Minutes
Minutes of all resolutions and proceedings at every meeting shall be made and
duly entered in books to be from time to time provided by the Company. Any such
minute as aforesaid, if purporting to be signed by the Chairman of the meeting
at which such resolutions were passed or proceedings had or by the Chairman of
the next succeeding meeting of Noteholders, shall be conclusive evidence of the
matters therein stated and, until the contrary is proved, every such meeting in
respect of the proceedings of which minutes have been made and signed shall be
deemed to have been duly held and convened and all resolutions passed or
proceedings had thereat to have been duly passed and had.
23. Governing Law
The Notes and the Instrument shall be governed by and construed in accordance
with English law.
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SCHEDULE 4
FORM OF DEMAND
To: Bank of America National Trust & Savings Association London Branch
0 Xxxx Xxxxxx
Xxxxxx Xx 0XX
Attention : Trade Finance Department
Ref: 6008GT 003823 /98
1. This demand is sent pursuant to the terms of a deed poll (the "Loan Note
Instrument") entered into on 10 September, 1998 by IMPAC Europe Public
Limited Company (the "Company") and Bank of America National Trust &
Savings Association acting through its London Branch (the "Guarantor").
Terms defined in the Loan Note Instrument shall bear the same meanings
when used in this demand.
2. I/We am/are the registered holder of Notes issued under the terms of the
Loan Note Instrument in an aggregate principal amount of (pound)[amount in
figures].
Name [ ]
Registered address [ ]
[3. I/We enclose the Certificate(s) relating to the Notes(s) in respect of
which the demand is made or an appropriate indemnity in favour of the
Guarantor (as previously agreed by the Guarantor pursuant to Clause 8.3
(B) of the Loan Note Instrument.] To be included in the case of a demand
for redemption of principal.
4. I/We claim the following sums:
(i) the amount of principal of (pound)[amount in figures] and/or
37
(ii) the amount of interest on the principal amount of
(pound)[amount in figures] in respect of interest accruing in
respect of Interest Periods ending on the dates:
Date Amount of Interest
---- ------------------
5. I/We confirm that to the best of my/our knowledge having made full and
proper enquiries:
(I) that, in the case of a demand for redemption of principal
payable in respect of the Notes, none of the Notes in respect
of which such claim is made has been cancelled, redeemed or
repurchased by the Company;
(ii) the sum demanded is due and payable by the Company and all
conditions and demands necessary in connection with them under
the Loan Note Instrument have been fulfilled and made and any
grace period relating to them has elapsed;
(iii) the Company has failed to pay the sum demanded in this notice
and such sum remains unpaid as at the date of this demand; and
(iv) that this demand is made within six months of the failure by
the Company to pay the sum demanded in this notice within 30
days of the due date for payment of such sum.
6. Payments under this demand should be made by way of cheque or warrant made
payable to the person or persons specified below and sent by post in a
pre-paid cover at my/our risk to the address specified below or, if no
person or persons' address is specified below, to the [first named]
registered holder of the Notes referred to above at his/her its address
specified on the Register:
........................
........................
........................
........................
7. Please acknowledge receipt of this demand and the enclosed
Certificate(s)/appropriate indemnity.
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Signed............................
By or on behalf of the
Registered Holder[s]
Above Signature confirmed to be Above Signature confirmed to be
the signature of the signature of
Mr/Mrs [name of registered holder] Mr/Mrs [name of registered holder]
by................................
Noteholder's Bankers/Solicitors
Bank/Firm [ ]
Officer/Partner [ ]
Date [ ]
39
/s/ [ILLEGIBLE]
SIGNED by LN ) .........................
and by AW ) Director
and thereby executed by )
IMPAC EUROPE PUBLIC )
LIMITED COMPANY ) /s/ [ILLEGIBLE]
as its Deed ) .........................
Director Secretary
executed as a Deed by )
BANK OF AMERICA )
NATIONAL TRUST & ) /s/ [ILLEGIBLE]
SAVINGS ASSOCIATION ) .........................
acting by Vice President
and by /s/ [ILLEGIBLE]
.........................
Vice President
40