Exhibit 2.11
Dated 31 August 2001
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INSTRUMENT
Constituting(pound)4,500,000
5 per cent. fixed rate
Unsecured Loan Notes
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ASHURST XXXXXX XXXXX
Xxxxxxxxx Xxxxx
0 Xxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Tel: 000 0000 0000
Fax: 000 0000 0000
CJA/KAE/A983.00018
THIS INSTRUMENT is made by way of deed on 31 August 2001
BY:-
(1) INVESCO UK LIMITED (No. 3004959) whose registered office is at 00
Xxxxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX (the "Company")
WHEREAS the Company has, pursuant to its Memorandum and Articles of Association
and by resolution of its board of directors passed on 31 August 2001, created
and authorised the issue of a maximum nominal amount of (pound)4,500,000 5%
Fixed Rate Unsecured Loan Notes 2009 to be constituted as hereinafter provided
and subject to, and with the benefit of, the schedules hereto which shall be
deemed to form part of this instrument.
BY THIS DEED THE COMPANY DECLARES AND COVENANTS AS FOLLOWS:-
1. DEFINITIONS AND INTERPRETATION
1.1 In this instrument and the schedules the following words and expressions
shall have the following meanings, unless the context otherwise requires:-
"business day" means a day (excluding Saturdays) on which banks generally
are open in London for the transaction of normal banking business;
"Conditions" means the conditions of the Notes as set out in schedule 2;
"Directors" means the board of directors for the time being of the Company;
"Extraordinary Resolution" means an extraordinary resolution as defined in
paragraph 18 of schedule 4;
"First Redemption Date" means the first anniversary of the date hereof;
"Interest Payment Date" has the meaning given in Condition 7.1;
"North American person" means:-
(a) any individual who is a resident or individual of the United States;
(b) a corporation, partnership or other entity created or organised in or
under the laws of the United States or any state thereof or an estate
or trust the income of which is subject to United States federal
income taxation regardless of its source; and
(c) any individual, corporation, partnership, trust or other entity
resident in Canada,
provided that the term "North American person" shall not include a branch
or agency of a United States bank or insurance company that is operating
outside the United States for valid business reasons as a locally
registered branch or agency engaged in the banking and
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insurance business and not solely for the purpose of investing in
securities not registered under the United States Securities Act of 1933,
as amended;
"Notes" means the (pound)4,500,000 5% Fixed Rate Unsecured Loan Notes 2009
constituted by this instrument or, as the case may be, the principal
amounts represented by them and for the time being issued and outstanding;
"Noteholder" means a person whose name is entered in the Register as the
holder of a Note;
"these presents" means this instrument and the schedules and includes any
Substitution Instrument to this instrument;
"Register" means the register of holders of the Notes kept by or on behalf
of the Company; and
"United States" means the United States of America.
1.2 Subject as herein expressly defined any words and expressions defined in
the Companies Xxx 0000 and 1989 shall have the meanings therein ascribed to
them.
1.3 References to any provision of any statute shall be deemed also to refer to
any statutory modification or re-enactment thereof from time to time in
force.
1.4 Words denoting persons shall include corporations, the masculine gender
shall include the feminine and the singular shall include the plural and
vice versa.
1.5 References to this "instrument" or this "deed" include, where the context
so admits, the schedules hereto.
1.6 The headings are for convenience only and shall not affect the
interpretation hereof.
2. AMOUNT OF THE NOTES
2.1 The aggregate nominal amount of the Notes constituted by this instrument is
limited to(pound)4,500,000.
2.2 The Notes will be issued in registered form in denominations of(pound)1 in
nominal amount or integral multiples thereof and shall be transferable in
accordance with schedule 2.
3. STATUS OF THE NOTES
3.1 The Notes represent a direct and unsecured obligation of the Company for
the due and punctual payment of the principal and interest in respect of
them and for the performance of all the obligations of the Company with
respect to them.
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3.2 The Notes when issued will rank pari passu equally and rateably without
discrimination or preference as unsecured obligations of the Company and
with all other unsecured indebtedness of the Company except to the extent
provided by law.
3.3 The Notes shall be known as 5% Fixed Rate Unsecured Loan Notes 2009.
4. CERTIFICATE FOR NOTES
4.1 Each Noteholder shall be entitled to a certificate stating the nominal
amount of the Notes held by him. Each certificate shall bear a denoting
number, shall (subject as provided in this clause 4.1) be executed under
the seal (or any securities seal) of the Company, shall be substantially in
the form set out in schedule 1 and shall have endorsed on it conditions in
the form or substantially in the form set out in schedule 2. Where
permitted by law, a certificate signed by one Director and the Secretary or
by two Directors and expressed to be executed by the Company shall have the
same effect as if executed under the seal. The Company shall not be bound
to register more than four persons as the joint holders of any Note. Joint
holders of Notes will be entitled to only one Note in respect of their
joint holding and the Note will be delivered to that one of the joint
holders who is first-named in the Register in respect of the joint holding
or to such other person as the joint holders may, in writing, direct.
Delivery of a certificate to one of such persons shall be sufficient
delivery to all. When a Noteholder has redeemed or transferred part only of
his Notes the old certificate shall be cancelled and a new certificate for
the balance of such Notes issued without charge.
4.2 The Directors may by resolution (either generally or in any particular case
or cases) determine that the signatures required by clause 4.1 shall be
affixed by means of some method or system of mechanical signature.
5. COVENANTS BY THE COMPANY
The Company HEREBY COVENANTS with the Noteholders and each of them to
comply with the terms of the Notes and to observe and perform the
Conditions, which conditions 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.
6. REGISTER OF NOTEHOLDERS
6.1 The Company shall cause a register to be maintained in respect of the Notes
in accordance with the provisions of schedule 3.
6.2 The provisions relating to the Register set out in schedule 3 shall be
deemed to be incorporated in this instrument and shall be binding on the
Company and the Noteholders and on all persons claiming through or under
them respectively.
7. MEETINGS OF NOTEHOLDERS
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The provisions for meetings of holders of the Notes set out in schedule 4
shall be deemed to be incorporated in this instrument and shall be binding
on the Company and the Noteholders and on all persons claiming through or
under them respectively.
8. FOREIGN NOTEHOLDERS
The Notes have not been and will not be registered under the United States
Securities Act of 1933, as amended, nor under any of the relevant
securities laws of any province or territory of Canada or Australia.
Accordingly, unless an exemption under such Act or laws is applicable, the
Notes may not be offered, sold or delivered, directly or indirectly, in or
into the United States, Canada or Australia or to or for the account or
benefit of any North American person or resident of Canada or Australia.
9. FURTHER NOTES
The Company shall be entitled from time to time, by resolution of the board
or of a duly authorised committee thereof, or to create and issue further
unsecured loan notes to be constituted by deed or instrument expressed to
be supplemental hereto either so as to be identical in all respects and
form a single series with the Notes or to carry such rights as to interest,
redemption and otherwise as the board may think fit.
10. SUBSTITUTION
10.1 Subject to clause 10.2 the Company may (or, where a substitution has taken
place under this clause 10, the Substituted Debtor may), without the
consent of the Noteholders, following the First Redemption Date, substitute
any subsidiary or holding company of the Company incorporated in the United
Kingdom (the "Substituted Debtor") for, or in place of, the Company (or of
any previous Substituted Debtor under this clause 10) as the principal
debtor under this instrument and the Notes by means of any instrument (the
"Substitution Instrument") executed by the Company (or any previous
Substituted Debtor under this clause 10) and the Substituted Debtor in such
form as they may agree, a copy of which shall be made available for
inspection by Noteholders.
10.2 Clause 10.1 shall not apply unless the Substituted Debtor qualifies or is
treated as a trading company or the holding company of a trading group,
both as defined in schedule A1 of the Taxation of Chargeable Gains Xxx 0000
and provided further such Substituted Debtor is a company of equivalent
financial standing at the time of substitution as the Company at the date
of this Instrument.
10.3 Immediately on the execution of the Substitution Instrument, the
Substituted Debtor shall assume liability as the principal debtor under the
instrument and the Notes for all moneys payable from time to time in
respect of the Notes or otherwise under or in respect of this instrument,
whereupon the Company (or any such previous Substituted Debtor) shall
automatically be released from any and all of its liabilities and
obligations under this instrument and the Notes (other than any existing
liability in respect of any breach of the instrument). Not later than 28
days after the execution of the Substitution Instrument and after
compliance with the provisions set out in clause 10.1, the Company shall
give notice of
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the substitution to the Noteholders. Such notice shall also state where
copies of the Substitution Instrument may be inspected. The non-receipt of
notice by, or the accidental omission to give notice to, any Noteholder
shall not invalidate any substitution effected pursuant to this clause 10.
10.4 On the execution of the Substitution Instrument and compliance with the
other provisions of clause 10.1, the Substituted Debtor shall be deemed to
be named in this instrument and on the Notes as the principal debtor in
place of the Company (or of any previous Substituted Debtor) as provided in
the Substitution Instrument. The existing Note certificates held by the
Noteholders (including the conditions endorsed thereon) shall not be
cancelled but shall remain valid in relation to the Substituted Debtor as
aforesaid.
11. GOVERNING LAW
11.1 These presents (and any dispute, controversy, proceedings or claim of
whatever nature arising out of or in any way relating to this instrument or
the constitution of the Notes) shall be governed by and construed in
accordance with English law.
IN WITNESS whereof this instrument has been executed as a deed and has been
delivered on the date which appears first on page 1.
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SCHEDULE 1
Form of Note
Certificate No. Transfer No. Date Nominal Amount
(pound)1
INVESCO UK LIMITED
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(Registered in England No. 3004959)
FIXED RATE UNSECURED LOAN NOTES 2009
Issue of (pound)4,500,000 5% Fixed Rate Unsecured Loan Notes 2009 (the "Notes"),
created and issued by INVESCO UK LIMITED (the "Company") pursuant to the
Memorandum and Articles of Association of the Company and a resolution of the
board of directors passed on 31 August 2001.
THIS IS TO CERTIFY that of is/are the registered holder(s) of (pound)
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nominal of the Notes which are constituted by an instrument made by the Company
on 31 August 2001 (the "instrument") and are issued with the benefit of and
subject to the provisions contained in the instrument and the conditions
endorsed hereon.
Interest calculated in accordance with the conditions endorsed hereon is payable
half-yearly in arrears on 30 October and 30 April in each year.
Given under the Common Seal of the Company
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Director
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Director/Secretary
Dated 2001
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Notes: (i) Where the context so admits, words and expressions defined in the
instrument shall bear the same respective meanings in the conditions
endorsed hereon.
(ii) The Notes are transferable in amounts or multiples of (pound)100,000.
No transfer, whether of the whole or any part of the Notes comprised
in this certificate, will be accepted
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for registration unless accompanied by this certificate and lodged at
the registered office of the Company.
(iii) This Note has not been and will not be registered under the United
States Securities Act of 1933, as amended, nor under any of the
relevant securities laws of any province or territory of Canada or
Australia. Accordingly, unless an exemption under such Act or laws is
applicable, this Note may not be offered, sold or delivered, directly
or indirectly in or into the United States, Canada or Australia or to
or for the account or benefit of any North American person or resident
of Australia or Canada.
(iv) The Notes are repayable in accordance with the conditions endorsed
hereon.
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SCHEDULE 2
Conditions
1. Form and Status
The Notes constitute unsecured obligations of the Company. The instrument
pursuant to which the Notes are issued does not contain any restrictions on
borrowing, charging or disposal of assets by the Company or any of its
subsidiaries.
2. Repayment, Prepayment, Purchase and Redemption
2.1 If not previously repaid or purchased, the Notes will be repaid by the
Company at par on 31 August 2009.
2.2 Each Noteholder shall be entitled to require the whole or any part (being
(pound)100,000 or a greater amount) of the Notes held by him to be repaid
at par, together with interest (subject to any requirement to deduct any
applicable tax) in accordance with condition 2.7 on any date falling on or
after the First Redemption Date.
2.3 Such right shall be exercisable by the Noteholder concerned completing and
signing the Notice of Repayment printed on the Note to be repaid (or by
completing such other form as the Directors may approve) and lodging the
same at registered office of the Company accompanied by such evidence (if
any) as the Directors may require to prove the title of the person
requiring repayment. A Notice of Repayment given to the Company in
accordance with this condition shall be irrevocable. No such notice may be
given in respect of any Notes in respect of which notice of redemption has
previously been given by the Company.
2.4 Against such delivery, the Company shall within 30 days of receipt of the
Notice of Repayment pay to the Noteholder concerned the principal amount of
his Note or, as the case may be, the part thereof to be repaid, together
with interest in accordance with condition 2.7 (subject to any requirement
to deduct any applicable tax therefrom).
2.5 If, at any time, the principal amount of all Notes outstanding is less than
(pound)1,000,000, the Company shall be entitled upon giving to the
remaining Noteholders not less than 30 days' notice in writing, such notice
not to take effect prior to 31 August 2002, to redeem, on the expiry date
of such notice, all (but not part only) of the outstanding Notes by payment
of the principal amount thereof, together with interest in accordance with
condition 2.7.
2.6 The Company may at any time purchase any Notes by tender (available to all
holders alike) or by private treaty at any price.
2.7 On making any payment of principal to a Noteholder under this condition the
Company shall pay to him the interest accrued thereon up to (but excluding)
the date of payment but subject to any deduction or withholding required by
law.
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3. Events of Default
3.1 Notwithstanding any other provisions of this instrument, each Noteholder
shall be entitled to require all of the Notes held by him to be repaid at
par together with accrued interest (after deduction of tax) whilst any of
the following is continuing:-
(a) the Company fails to pay within 30 days of the due date any principal
or interest payable in respect of the Notes; or
(b) an order is made or an effective resolution is passed for the
winding-up or dissolution of the Company (otherwise than for the
purposes of an amalgamation or reconstruction or a members' voluntary
winding up upon terms previously approved by Extraordinary
Resolution); or
(c) an encumbrancer takes possession or a trustee, receiver or an
administrator or administrative receiver or similar officer is
appointed of all or substantially all of the undertaking of the
Company and such person has not been paid out or discharged within 30
days.
3.2 Such right shall be exercisable by the Noteholder concerned in the manner
described in condition 2.3 and thereupon such Notes shall immediately
become repayable.
3.3 At any time after the Notes have become repayable under the provisions of
this condition, any Noteholder may without notice institute such
proceedings as he may think fit to enforce repayment of the Notes.
3.4 The Company shall notify the Noteholders forthwith of the happening of any
of the events specified in condition 3.1.
4. Method of Payment
Payment of the principal monies and interest payable upon the Notes, or any
part thereof, may be made by cheque, warrant or money order sent through
the post to the registered address of the Noteholder or, in the case of
joint Noteholders, to the registered address of that one of them who is
first named on the Register (or to such person and to such address as the
Noteholder or joint Noteholders may in writing direct) or by a bank or
other funds transfer system. Every such cheque, warrant or money order
shall be made payable to the order of the person to whom it is sent (or to
such person as the Noteholder or joint Noteholders may in writing direct)
and payment of the cheque, warrant or money order shall be a satisfaction
of the principal and interest represented thereby. If payment is made by a
bank or other funds transfer, the Company shall not be responsible for
amounts lost or delayed in the course of the transfer.
5. Surrender of certificate and Prescription
5.1 Every Noteholder any part of whose Notes are due to be repaid under any of
the provisions of these conditions shall, not later than the due date for
such repayment, deliver the relevant
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certificates for such Notes to the registered office of the Company or as
it shall direct. Unless payment of the amount due to be repaid has already
been made in accordance with condition 4 above, upon such delivery and
against a receipt for the principal moneys payable in respect of the Notes
to be repaid, the Company shall pay to the Noteholder the amount payable to
him in respect of such repayment in accordance with condition 4. If part
only of any Note(s) as evidenced by the relevant certificate so delivered
is then due to be repaid, the Company shall either endorse such Note with a
memorandum of the date and amount paid to the holder of such Note and
return it to the Noteholder or shall cancel such Note and without charge
issue to such Noteholder a new Note for the balance of the principal amount
due to him.
5.2 If any Noteholder, any part of whose Notes is liable to be repaid under
these conditions, shall fail or refuse to deliver up the forms required
under condition 2.3 and/or the certificate(s) for such Notes at the time
and place fixed for repayment thereof or should fail or refuse to accept
payment of the repayment monies payable in respect thereof, the monies
payable to such Noteholder shall be set aside by the Company and paid into
a separate bank account and held by the Company in trust for such
Noteholder but without interest and such setting aside shall be deemed for
all the purposes of these conditions to be a payment to such Noteholder and
the Company shall thereby be discharged from all obligations in connection
with such Notes. If the Company shall place the said monies on deposit at a
bank, the Company shall not be responsible for the safe custody of such
monies or for interest thereon except such interest (if any) as the said
monies 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 12 years from the making of the
payment or deposit, shall revert to the Company notwithstanding that in the
intervening period the obligation to pay the same may have been provided
for in the books, accounts and other records of the Company.
6. Cancellation
All Notes purchased or repaid by the Company shall be cancelled and shall
not be available for reissue.
7. Interest
7.1 Until such time as the Notes are redeemed, repaid or purchased in
accordance with these conditions, the Company will pay interest on the
principal amount of each Note (subject to any requirement to deduct tax)
twice yearly in arrears on 30 October and 30 April in each year or, if such
day is not a business day, on the next following business day ("Interest
Payment Dates") in respect of the Interest Periods (as defined below) up to
and including those days, in each case only to persons who are registered
as Noteholders at the close of business on the relevant Record Date, except
that the first payment of interest in respect of any Note will be made on
30 October 2001 (other than by payment of interest payable in accordance
with condition 2) in respect of the period from and including the date of
issue. The period from and including the date of issue up to and including
30 October 2001 and the period from but excluding 30 October 2001 or any
subsequent interest payment date up to and including the next following
Interest Payment Date is referred to as an "Interest Period".
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7.2 Should any Payment Date fall on a day which is not a business day, then for
the purpose of the payment of interest and any other payments due to the
Noteholder pursuant to condition 2, the Interest Payment Date shall be
deemed to be the next business day immediately following such an Interest
Payment Date. This provision shall not affect any Interest Period nor shall
it affect the amount of interest (or any other monies) to be paid on any
Interest Payment Date.
7.3 The "Record Date" shall mean those on the Register at the close of business
on the Interest Payment Date.
7.4 Interest for any Interest Period (the "Rate of Interest") shall be paid at
the fixed rate of 5 per cent. per annum.
7.5 The amount of interest payable on a Note shall be calculated by applying
the Rate of Interest to the principal amount of the Note and multiplying
such sum by the actual number of days in the Interest Period concerned
divided by 365 or, in the case of an Interest Payment Date falling in a
leap year, 366 and by rounding up the resultant figure to the nearest
xxxxx. The determination of the Rate of Interest and the calculation of
each interest amount shall, in the absence of manifest error, be final and
binding.
7.6 Interest on such Notes becoming liable to repayment shall cease to accrue
as from the due date for repayment of such Notes.
7.7 Any interest which remains unclaimed after the period of six years from the
date of first payment shall revert to the Company notwithstanding that in
the intervening period the obligation to pay the same may have been
provided for in the books, accounts and the other records of the Company.
7.8 If the Company fails to pay the Noteholders any interest payable under the
Note within 10 Business Days of the relevant Interest Payment Date, the
Company (without prejudice to all other rights and remedies of the
Noteholders) shall pay to the Noteholders additional interest at the Agreed
Rate on the overdue interest from the date of the failure to pay up to the
date of actual payment (both before as well as after any judgement)
calculated on a day to day basis (but without compounding) for as long as
the amount remains unpaid.
8. Currency conversion
Each Noteholder may, by notice in writing to the Company given on or before
a date (the "Election Date") being 30 days prior to 31 August 2009 (the
"Redemption Date") elect that the principal amount of the Notes held by
that Noteholder then outstanding shall be redeemed in US dollars in which
event the Company shall on the Redemption Date and in full discharge of its
obligations to repay the Notes held by that Noteholder pay to the
Noteholder an amount in US dollars obtained by converting the principal
amount outstanding of the Notes into US dollars (at the spot rate for the
purchase of US dollars with sterling certified by National Westminster Bank
plcas prevailing at or about 11.00 am on the Election Date (or, where the
Election Date is not a business day, on the immediately preceding business
day) provided that:-
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(a) if the amount payable in US dollars hereunder would otherwise exceed
an amount in US dollars obtained by converting 100.3 per cent. of the
sterling principal amount outstanding of the Notes into US dollars at
the spot rate for the purchase of US dollars with sterling certified
by National Westminster Bank plc as prevailing at or about 11.00 am on
the Redemption Date the latter amount shall be substituted therefor;
(b) if the amount payable in US dollars hereunder would otherwise be less
than the amount in US dollars obtained by converting 99.7 per cent. of
the sterling principal amount outstanding of the Notes into US dollars
at the spot rate for the purchase of US dollars with sterling
certified by National Westminster Bank plc as prevailing at or about
11.00 am on the Redemption Date the latter amount shall be substituted
therefor.
9. Modification
9.1 The provisions of the instrument and the rights of the Noteholders may from
time to time be modified, abrogated or compromised in any respect by the
Company with the written consent of the holders of 100 per cent. in nominal
amount of the Notes then in issue or the sanction of an Extraordinary
Resolution of the Noteholders as provided in the instrument.
9.2 The Company may amend the provisions of the instrument without such
sanction or consent if, in the opinion of the financial adviser to the
Company, such amendment is of a formal, minor or technical nature or
corrects a manifest error. Any opinion of the financial adviser in this
regard shall be arrived at in its absolute discretion and no liability
shall attach to it in respect thereof.
10. Registration, Transfer and Marketability
10.1 The Notes are transferable, in accordance with the provisions of the
instrument, in amounts of(pound)100,000 or greater.
10.2 No application has been or is intended to be made to any listing authority
or to any stock exchange for any of the Notes to be listed or otherwise
traded.
10.3 No transfer of Notes will be registered during the 21 days immediately
preceding an Interest Payment Date.
11. Lost or Destroyed Notes
If a Note is defaced, lost or destroyed it may be renewed on payment of
such fee as is reasonable and on such terms (if any) as to evidence and
indemnity as the board may require but so that in the case of defacement
the defaced Note shall be surrendered before a new Note is issued. An entry
as to the issue of a new Note and indemnity (if any) shall be made in the
Register.
12. Notice to Noteholders
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12.1 Any notice or other document (including certificates for Notes) may be
served on a Noteholder by sending the same by post in a prepaid letter
addressed to such Noteholder at his registered address, in the United
Kingdom 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.
12.2 In the case of joint Noteholders a notice or document served on the
Noteholder whose name stands first in the Register shall be sufficient
notice to all the joint Noteholders.
12.3 Any notice or other document may be served on the person entitled to a Note
in consequence of the death or bankruptcy of any Noteholder by sending the
same by post, in a prepaid letter addressed to him by name or by the title
of the representative or trustees of such Noteholder, 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.
13. Notices to the Company
Any notice, demand or other document (including certificates for Notes and
transfers of Notes) may be served on the Company by sending the same by
post in a prepaid letter to the registered office of the Company or to such
other address in England as the Company may from time to time notify
Noteholders.
14. Service of Notices
Any notice or document served by post shall be deemed to have been served
on the day after it is posted or, if such day is not a business day, then
on the next following business day and in proving such service it shall be
sufficient to prove that the letter containing the notice was properly
addressed, stamped and posted.
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15. Inspection of the Instrument
A copy of the instrument shall be kept at the registered office of the
Company. A Noteholder and any person authorised by a Noteholder may at all
reasonable times during office hours inspect such copy.
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NOTICE OF REPAYMENT
To: INVESCO UK LIMITED (the "Company")
1. I/We being the registered holder(s) of the Notes represented by this
certificate hereby give notice that I/we require repayment in the manner
set out in paragraph 2.1/2.2/1/ below of all/(pound) /2/ of the Notes
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in accordance with the above conditions.
2. I/We authorise and request you:-
2.1 (a) to make the cheque or warrant payable to the person whose name is set
out below or, if none is set out, to me/us; and
(b) to send it by post at my/our risk to the person whose name and address
is set out below or, if none is set out, to the registered address of
the sole or first-named holder; or
2.2 to transfer the repayment monies to:-
Bank:
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Address:
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(outside the United States,
Canada or Australia)
Branch Code:
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Account name:
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Account no:
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I/We acknowledge that payment of the moneys hereby authorised shall be in
full and final satisfaction of the moneys to which I/we become entitled as
aforesaid.
3. 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 at my/our risk to the person whose name and address is set out below
or, if none is set out, to the sole or first-named holder at his/her
registered address.
Dated
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/1/ Please delete 2.1 or 2.2 as appropriate. If neither or both is deleted,
repayment will be made in accordance with paragr 2.1. Signature(s) of
Noteholder(s)3
/2/ Delete or complete as appropriate. Repayment of part only is permitted in
accordance with Condition 2 only and mus (pound)100,000 or greater amount.
If no amount is inserted, all of such Notes will be repaid.
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Signature(s)of Noteholder(s)/3/
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Name/4/
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Address:
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(outside the United States,
Canada or Australia)
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/3/ 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 in which event the Note must be accompanied by
the authority under which this Notice is completed.
/4/ Please insert in BLOCK CAPITALS the name of the person to whom you wish the
cheque, warrant or money order to be made payable (if not to you) and/or
the address of the person to whom you wish the cheque, warrant or money
order and any balance certificate to be sent if it is different from that
of the sole or first-named holder. If the space is left blank, the cheque,
warrant or money order will be made payable to the sole holder or all of
the joint holders and it and any balance certificate will be sent to the
registered address of the first-named Noteholder.
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SCHEDULE 3
Provisions as to the Register
1. Register of Notes
1.1 The Company shall cause a register to be maintained at the registered
office of the Company showing the amount of the Notes for the time being
issued, the date of issue and the amount of Notes for the time being
outstanding, the names and addresses of the Noteholders, the nominal
amounts of the Notes held by them respectively and all transfers or changes
of ownership of the Notes.
1.2 Any change of name or address on the part of any holder of Notes shall
forthwith be notified by the holder to the Company and the Company shall
alter the Register accordingly.
2. Recognition of Noteholder as absolute owner
2.1 Except as required by law, the Company will recognise the registered holder
of any Notes as the absolute owner thereof and shall not (except as ordered
by a court of competent jurisdiction) be bound to take notice or see to the
execution of any trust, whether express, implied or constructive, to which
any Notes may be subject and the Company may accept the receipt of the
registered holder for the time being of any Notes, or in the case of joint
registered holders the receipt of any of them, for the principal monies
payable in respect thereof or for the interest from time to time accruing
due in respect thereof or for any other moneys payable in respect thereof
as a good discharge to the Company notwithstanding any notice it 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.
2.2 If a warrant in payment of any amounts due to the registered holders of any
Notes, made payable and despatched in accordance with the conditions, is
encashed such encashment shall be deemed to be a good discharge to the
Company notwithstanding any notice it may have whether express or otherwise
of the right, title, interest or claim of any other person to or in such
moneys.
2.3 No notice of any trust, express, implied or constructive, shall (except as
by statute provided or as required by order of a court of competent
jurisdiction) be entered in the Register in respect of any Notes.
3. Exclusion of equities
The Company will recognise every holder of Notes 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.
4. Transferability of Notes
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4.1 Every holder of Notes will be entitled (subject as hereinafter provided) to
transfer the same or any part (being an amount or integral multiple of
(pound)100,000) by an instrument in writing in the usual or common form or
such other form as the Company may accept. There shall not be included in
any instrument of transfer any notes other than the Notes constituted by
the instrument.
4.2 Every instrument of transfer must be signed by the transferor or where the
transferor is a corporation given under its common seal or signed on its
behalf by a duly authorised officer or agent and the transferor shall
remain the owner of the Notes to be transferred until the name of the
transferee is entered in the Register in respect thereof.
4.3 Every instrument of transfer must be lodged for registration at the place
where the Register shall for the time being be kept accompanied by the
certificate for the Notes all or part of the nominal amount of which is to
be transferred and such other evidence as the Directors or other officers
of the Company authorised to deal with transfers 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 the person signing the same.
4.4 No transfer shall be registered of Notes in respect of which a notice
requiring repayment has been given.
4.5 All instruments of transfer which shall be registered may be retained by
the Company.
5. No fee for registration of transfers
No fee shall be charged 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.
6. Death or bankruptcy of Noteholders
6.1 The executors or administrators of a deceased Noteholder (not being one of
several joint holders) shall be the only persons recognised by the Company
as having any title to or interest in such Note.
6.2 In the case of the death of any of the joint holders of a Note the
survivors or survivor will be the only persons or person recognised by the
Company as having any title to or interest in such Note.
6.3 Any person becoming entitled to Notes in consequence of the death or
bankruptcy of any Noteholder or of any other event giving rise to the
transmission of such Notes by operation of law may, upon producing such
evidence that he sustains the character in respect of which he proposes to
act under this paragraph or of his title as the Directors shall think
sufficient, be registered himself as the holder of the Note or subject to
the preceding paragraphs may transfer the Note.
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7. Receipt of joint holders
If several persons are entered in the register as joint registered holders
of any Notes then, without prejudice to paragraph 2 above, the receipt of
any one of such persons for any interest or principal or other monies
payable in respect of such Notes shall be as effective a discharge to the
Company as if the person signing such receipt were the sole registered
holder of such Notes.
8. The Register
8.1 A Noteholder and any person authorised by him may at all reasonable times
during office hours inspect the Register and upon payment of a reasonable
charge take copies of, or extracts from, the Register or any part of it.
8.2 The Register may be closed by the Company for such periods and at such
times (not exceeding 30 business days in any one year) as it may think fit
and during such period the Company shall be under no obligation to register
transfers of the Notes.
9. Replacement of certificates
If the certificate for any Notes is lost, defaced or destroyed, it may be
renewed, on such terms (if any) as to evidence and indemnity as the
Directors may require, but so that in the case of defacement the defaced
certificate shall be surrendered before the new certificate is issued.
10. Risk to Noteholders
All certificates, other documents and remittances sent through the post
shall be sent at the risk of the Noteholders entitled thereto.
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SCHEDULE 4
Provisions for meetings of Noteholders
1. Calling of meetings
The Company at any time may, and shall upon the request in writing signed
by Noteholders holding not less than twenty five per cent. in nominal value
of the Notes for the time being outstanding, convene a meeting of the
Noteholders. Every such meeting and every adjourned meeting shall be held
at the registered office of the Company for the time being or such other
place as the Company may specify.
2. Notice of meetings
At least 21 days' notice (exclusive of the day on which the notice is given
or deemed to be given and the day on which the meeting is to be held)
specifying the day, time and place of meeting shall be given to the
Noteholders of any meeting of the Noteholders. Any such notice shall
specify the terms of the resolutions to be proposed and shall include a
statement to the effect that proxies may be appointed in accordance with
the provisions of paragraph 15 of this schedule. No amendment (other than
an amendment to correct a typographical or manifest error) may subsequently
be made to the resolution(s) specified in the notice of meeting. The
accidental omission to give notice to, or the non-receipt of notice by, any
of the Noteholders shall not invalidate the proceedings at any meeting.
3. Chairman of meetings
Such person (who may, but need not, be a Noteholder) nominated in writing
by the Company shall be entitled to take the chair at every such meeting or
adjourned meeting. If at any meeting or adjourned meeting no person shall
be nominated or the person nominated shall not be present within 15 minutes
after the time appointed for the holding of such meeting or adjourned
meeting the Noteholders present shall choose one of their number to be
chairman.
4. Quorum at meetings
At any such meeting two or more persons present in person (not being the
Company, any person directly or indirectly under the control of the Company
or any nominees thereof) or by proxy holding Notes or being proxies and
being or representing in the aggregate the holders of a majority in nominal
amount of the Notes then outstanding and not held by or on behalf of the
Company shall form a quorum for the transaction of business and no business
(other than the choosing of a chairman) shall be transacted at any meeting
unless the requisite quorum be present at the commencement of business.
5. Absence of quorum
If within half an hour from the time appointed for any such meeting a
quorum is not present, the meeting shall, if convened upon the requisition
of Noteholders, be dissolved. In any other
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case, the meeting shall stand adjourned for such period, not being less
than 14 days nor more than 42 days, and to such time and place as may be
appointed by the chairman. At such adjourned meeting two or more persons
present in person or by proxy (not being the Company, any person directly
or indirectly under the control of the Company or any nominee thereof)
holding Notes or being proxies (whatever the nominal amount of the Notes
which they hold or represent) shall form a quorum and shall have the power
to pass any resolution and to decide upon all matters which could properly
have been dealt with at the meeting from which the adjournment took place
had a quorum been present at such meeting.
6. Notice of adjourned meetings
At least ten days' notice of any meeting adjourned through want of a quorum
shall be given in the same manner as of an original meeting and such notice
shall state the quorum required at such adjourned meeting. Subject as
aforesaid it shall not be necessary to give any notice of an adjourned
meeting.
7. Adjournment of meetings
The chairman may with the consent of (and shall if directed by) any meeting
adjourn the same from time to time 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.
8. Resolution on a show of hands or poll
Every question submitted to a meeting shall be decided in the first
instance by a show of hands, and unless a poll is demanded (before or on
the declaration of the result of the show of hands) by the chairman, the
Company or by one or more persons holding Notes or being proxies and being
or representing in the aggregate the holders of not less than one-twentieth
of the nominal amount of the Notes then outstanding and not held by or on
behalf of the Company, a declaration by the chairman that the resolution
has been carried, or carried by a particular majority, or lost, or not
carried by any particular majority shall be conclusive evidence of the fact
without proof of the number or proportion of the votes recorded in favour
of or against such resolution.
9. Manner of taking poll
If at any meeting a poll is so demanded it shall be taken in such manner
and, subject as hereinafter provided, either at once or after such an
adjournment as the chairman directs and the result of such poll shall be
deemed to be the resolution of the meeting at which the poll was demanded
as at the date of the taking of the poll. The demand for a poll shall not
prevent the continuance of the meeting for the transaction of any business
other than the question on which the poll has been demanded.
10. Time for taking poll
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Any poll demanded at any meeting on the election of a chairman or on any
question of adjournment shall be taken at the meeting without adjournment.
11. Persons entitled to attend and vote
Any persons duly authorised by the Company including without limitation the
Directors, the secretary or the Company's auditors or legal or financial
advisers shall be entitled to attend and speak at any meeting of the
Noteholders and any other person authorised in that behalf by the
Directors. Save as aforesaid no person shall be entitled to attend or vote
at any meeting of the Noteholders unless he is registered as a holder of
Notes or he produces written evidence of his appointment as a
representative pursuant to paragraph 20 or is a proxy. No votes may be
exercised in respect of Notes held by or for the account of the Company or
anyone directly or indirectly under the control of it, but this shall not
prevent any proxy from being a director, officer or representative of, or
otherwise connected with the Company.
12. Votes
12.1 Subject as provided in paragraph 11 above, at any meeting:-
(a) on a show of hands every Noteholder who (being an individual) is
present in person or by proxy or (being a corporation) is present by
its representative duly authorised in accordance with paragraph 20
below or its proxy, shall have one vote; and
(b) on a poll every person who is so present shall have one vote in
respect of every(pound)1 nominal of Notes of which he is the holder or
in respect of which he is a proxy or a representative.
12.2 Without prejudice to the obligations of any proxies any person entitled to
more than one vote need not use all his votes or cast all the votes to
which he is entitled in the same way.
13. Votes of joint holders
In the case of the joint 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 name stands in the
Register.
14. Casting vote of chairman
In the case of an equality of votes, the chairman shall both on a show of
hands and on a poll have 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 or as a
representative.
15. Appointment of proxy
15.1 Proxies named in any Form of Proxy (as defined below) or block voting
instruction need not be Noteholders.
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15.2 A Noteholder may by instrument in writing (a "Form of Proxy") appoint a
proxy. The Form of Proxy shall be signed by the appointor or his attorney
duly authorised in writing or if the appointor is a corporation either
under the common seal or under the hand of an officer or attorney so
authorised. The Company may, but shall not be bound to, require evidence of
the authority of any such officer or attorney.
15.3 A Form of Proxy and the power of attorney or other authority (if any) under
which it is signed or a notarially certified copy of such power or
authority shall be deposited at such place as the Company may, in the
notice convening the meeting, direct or, if no such place is appointed,
then at the registered office of the Company not less than 48 hours before
the time appointed for holding the meeting at which the person named in the
Form of Proxy proposes to vote and in default the Form of Proxy shall not
be treated as valid. No Form of Proxy shall be valid after the expiration
of 12 months from the date named in it as the date of its execution.
15.4 A Form of Proxy may be in any usual or common form or in any other form
which the Company shall approve. A proxy shall, unless the contrary is
stated therein and subject to paragraph 15.3 above and paragraph 15.5
below, be valid as well for any adjournment of the meeting as for the
meeting to which it relates and need not be witnessed.
15.5 A vote given in accordance with the terms of a Form 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 its registered office
before the commencement of the meeting or adjourned meeting for the time
being at which the proxy is used.
16. Powers of meetings of Noteholders
A meeting of the Noteholders shall in addition to all other powers (but
without prejudice to any powers conferred on other persons in the
instrument) have the following powers exercisable only by Extraordinary
Resolution namely:-
16.1 to sanction any proposal by the Company for any modification, abrogation,
variation or compromise of, or arrangement in respect of, the rights of the
Noteholders against the Company whether such rights shall arise under the
conditions, the instrument or otherwise;
16.2 to sanction any proposal by the Company for the exchange or substitution
for the Notes of, or the conversion of the Notes into, other obligations or
securities of the Company or any other person or entity;
16.3 to assent to any modification or abrogation of the conditions and of the
provisions of these presents which shall be proposed by the Company and to
authorise the Company to execute a Substitution Instrument to this
instrument embodying any such modification or abrogation; and
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16.4 to appoint any persons (whether Noteholders or not) as a committee or
committees to represent the interests of the Noteholders and to confer upon
such committee or committees any powers or discretions which the
Noteholders could themselves exercise by Extraordinary Resolution.
17. Extraordinary Resolution binding on all Noteholders
An Extraordinary Resolution passed at a meeting of the Noteholders duly
convened and held in accordance with this instrument shall be binding upon
all the Noteholders whether present or not at such meeting and each of the
Noteholders shall be bound to give effect thereto accordingly. The passing
of any such resolution shall be conclusive evidence that the circumstances
of any such resolution justify the passing thereof.
18. Definition of Extraordinary Resolution
The expression "Extraordinary Resolution" when used in this instrument
means a resolution passed at a meeting of the Noteholders duly convened and
held in accordance with the provisions contained herein by a majority
consisting of not less than three-quarters of the persons voting thereat
upon a show of hands or, if a poll is demanded, then by a majority
consisting of not less than three-quarters of the votes cast thereon.
19. Minutes of Meetings
Minutes of all resolutions and proceedings at every meeting shall be made
and duly entered in books to be from time to time provided for that purpose
by the Company and any such minutes, if they purport to be signed by the
chairman of the meeting at which such resolutions were passed or
proceedings were transacted or by the chairman of the next succeeding
meeting of the Noteholders, shall be conclusive evidence of the matters
therein contained and, until the contrary is proved, every meeting in
respect of which minutes of the proceedings have been made and signed as
aforesaid shall be deemed to have been duly held and convened and all
resolutions passed or proceedings transacted thereat to have been duly
passed and transacted.
20. Corporate representatives
Any company or corporation which is a holder of Notes may by resolution of
its directors or other governing body authorise any person to act as its
representative at any meeting of Noteholders and such representative shall
be entitled to exercise the same powers on behalf of the company or
corporation which he represents as if he were the holder of Notes.
21. Resolutions in writing
A resolution in writing proposed by the Company and signed by the holders
of not less than three-quarters in nominal amount of the Notes then in
issue (other than Notes held by or for the account of the Company) shall
have effect in the same manner as an Extraordinary Resolution of
Noteholders duly passed at a meeting duly convened and held. Such
resolution in writing may be contained in one document or in several
documents in like form, each signed by one or more Noteholders.
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22. Consent of Company
Notwithstanding anything in this instrument to the contrary, no resolution
shall be effective which would increase any obligation of the Company under
the instrument without the written consent of the Company.
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The common seal of )
INVESCO UK LIMITED was hereunto affixed in the )
presence of:- )
)
Director /s/ Xxxxxx X. Xxxxxxxxx
Secretary /s/ Xxxxxxx X. Xxxxxx
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