Instrument
constituting up to £30,000,000 Floating Rate Loan Notes 2015
THIS INSTRUMENT is made by way
of deed
on 2010
BY:
UNIVERSE BIDCO LIMITED (No.
7289402) whose registered office is at Washington House, Birchwood Park Avenue,
Birchwood, Warrington WA3 6GR (the "Company"); and
[Security Trustee] (No ●) whose registered
office is at [●] (the "Security
Trustee").
WHEREAS
the
Company has, pursuant to its Memorandum and Articles of Association and by
resolution of its board of directors passed on
[ ] June 2010, created and authorised the
issue of a maximum nominal amount of £30,000,000 floating rate loan notes 2015
to be constituted as hereinafter provided and subject to and with the benefit of
the schedules which shall be deemed to form part of this
instrument.
BY
THIS DEED THE COMPANY DECLARES AND COVENANTS AS FOLLOWS:
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1.
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DEFINITIONS
AND INTERPRETATION
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1.1
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In
this instrument and the schedules the following words and expressions
shall have the following meanings, unless the context otherwise
requires:
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"business day" means a day
(excluding Saturdays and Sundays) on which banks are open in London for the
transaction of normal banking business;
"Conditions" means the
conditions of the Notes as set out in schedule 2 as they may from time to time
be modified in accordance with the provisions contained in this
instrument;
"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
5;
"Form of Election" means the
form of election completed by each initial beneficial owner of the Notes in
connection with the election to receive the Notes;
"Interest Payment Date" has
the meaning given in Condition 7.1;
"Moody's" means Xxxxx'x
Investors Service, Inc.
"North American person"
means:
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(a)
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any
US Person; and
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(b)
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any
individual, corporation, partnership, trust or other entity resident in
Canada;
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"Notes" means the
£30,000,000 floating rate loan notes 2015 originally constituted by this
instrument or, as the case may be, the principal amounts represented by them and
for the time being issued and outstanding and reference to a "Note" is a reference to any
one of the issued Notes;
"Noteholder" means a person
whose name is entered in the Register as the holder of a Note;
"par" means the nominal amount
of the Notes;
1
"Parent" has the meaning given
in clause 6.1;
"Rating Agency" means S&P
or any of its Subsidiaries and its or their successors or Moody's or any of its
Subsidiaries and its or their successors or any internationally recognised
rating agency substituted for either of them by the Parent from time to time
with the prior approval of the Noteholders;
"Rating Downgrade" shall be deemed to have
occurred if:
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(i)
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in
the case where the Parent is assigned a rating by two Rating Agencies,
each of the ratings assigned to the Parent by the Rating Agencies is
withdrawn or downgraded to BB-/Ba3 (or their respective equivalents for
the time being, or worse) and it not reinstated or upgraded to BB+/Ba2 (or
their respective equivalents for the time being, or better) within 60 days
of such withdrawal or downgrade; or
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(ii)
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in
the case where the Parent is only assigned a rating by one Rating Agency,
the current rating assigned to the Parent by that Rating Agency is
withdrawn or downgraded to BB-/Ba3 (or its respective equivalent for
the time being, or worse) and it not reinstated or upgraded to BB+/Ba2 (or
its respective equivalent for the time being, or better) within 60 days of
such withdrawal or downgrade;
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"Register" means the register
of Noteholders referred to in clause 6;
"Registrars" means,
together, Equiniti Limited and Equiniti Financial Services Limited, each of
whose registered office is Aspect House, Xxxxxxx Road, Lancing Business Park,
Lancing, West Sussex BN99 6DA or such other registrars as the Company may
appoint;
"S&P" means Standard & Poor's
Financial Services LLC, a subsidiary of the McGraw Hill Companies,
Inc;
"TTE Instruction" means a
transfer to escrow instruction given by a holder of uncertificated scheme shares
through CREST;
"United States" means the
United States of America, its territories and possessions, any state of the
United States and the District of Columbia; and
"US Person" means a US person
as defined in Regulation S under the United States Securities Act of
1933, as amended
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1.2
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Subject
as herein expressly defined any words and expressions defined in the
Companies Act 2006 shall have the meanings therein ascribed to
them.
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1.3
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References
to any provision of any statute shall be deemed also to refer to any
statutory provision modification or re-enactment thereof from time to time
in force.
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1.4
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Words
denoting persons shall include corporations, the masculine gender shall
include the feminine and the singular shall include the plural and vice
versa.
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1.5
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References
to this "instrument" or this
"deed" include,
where the context so admits, the schedules
hereto.
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1.6
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The
headings are for convenience only and shall not affect the interpretation
hereof.
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1.7
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"Pounds" and "£" denote the lawful
currency of the United Kingdom.
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2
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2.
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AMOUNT
AND FORM OF THE NOTES
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2.1
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The
aggregate nominal amount of the Notes constituted by this instrument is
limited to £30,000,000.
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2.2
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The
Notes will initially be represented by a temporary global Note certificate
(the "Temporary Global
Certificate") registered in the name of the Registrar, acting in
its capacity as Note agent for the beneficial owners of the interests
therein (and such beneficial ownership and interests shall be recorded in
a register maintained by the Registrar as Note agent for such purpose).
The Registrar shall hold the Temporary Global Certificate for a period of
forty days from the date of issue (the "Forty Day Period"),
during which time neither the Temporary Global Certificate nor beneficial
interests therein shall be transferable under any circumstances
whatsoever. Any purported transfer of the Temporary Global Certificate or
any beneficial interest therein during the Forty Day Period shall be null
and void ab
initio. Upon expiry of the Forty Day Period and receipt by the
Registrar from each beneficial owner of an interest in the Notes of
certification of beneficial ownership of the Notes by non-US Persons
(which certification may be contained in a Form of Election or a TTE
Instruction), the Temporary Global Certificate will be exchanged in whole
but not in part for Notes represented by a definitive Note certificate
(the "Definitive
Certificate"). As soon as is reasonably practicable
thereafter, the Registrar, acting in its capacity as Note agent, shall
deliver one or more Definitive Certificates to the Noteholders in
registered form in denominations of £1 in nominal amount or integral
multiples thereof. Upon expiry of the Forty Day Period the Notes shall be
transferable in accordance with schedule 2 and clause 4.7 of schedule
3.
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3.
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STATUS
OF THE NOTES
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3.1
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The
Notes represent a direct 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
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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.
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3.3
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The
Notes shall be known as Floating Rate Loan Notes
2015.
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4.
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CERTIFICATE
FOR NOTES
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4.1
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Upon
expiry of the Forty Day Period and receipt by the Registrar from each
beneficial owner of an interest in the Notes of certification of
beneficial ownership of the Notes by non-US Persons (which certification
may be contained in a Form of Election or a TTE instruction), each
Noteholder shall be entitled to one certificate without charge for the
total nominal amount of Notes registered in his name. Each
certificate shall bear a denoting number, shall (subject as provided in
this clause 4.1) be executed as a deed by the Company in accordance with
its articles of association for the time being or in such other manner as
may be permitted by statute, 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. 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.
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3
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4.2
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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.
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5.
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COVENANTS
BY THE COMPANY
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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.
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6.
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PARENT
COMPANY GUARANTEE & DESIGNATED DEPOSIT
ACCOUNT
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6.1
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The
obligations of the Company in relation to payment of the principal and
interest under this instrument in respect of the Notes (the principal
amount of the Notes outstanding from time to time and the interest from
time to time thereon being together, in aggregate, the "Aggregate Outstanding
Amount"), will at all times at the option of the Company be one of
the following:
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(a)
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guaranteed
by the Company's ultimate holding company, Universe Corporation (the "Parent"), by executing
a parent company guarantee substantially in the form attached as schedule
4 hereto (the "Parent
Guarantee"); or
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(b)
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cash
collateralised by the deposit of an amount equal to the Aggregate
Outstanding Amount into a blocked account in the name of the Company (a
"Designated Deposit
Account") and, subject to clause 6.4 below, the Company undertakes,
until such time that the Company has no further obligation under this
instrument to pay the Loan Note Holders, only to use the proceeds of the
Designated Deposit Account to pay the Aggregate Outstanding Amount, in
accordance with the terms of this instrument,
and/or
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(c)
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guaranteed
by the Parent pursuant to the terms of a Parent Guarantee and cash
collateralised by the Company by virtue of a deposit in the Designated
Deposit Account in such respective amounts as the Parent and the Company
shall agree provided that the aggregate amount guaranteed by the Parent
under the Parent Guarantee and the amount standing to the credit of the
Designated Deposit Account shall at all times in aggregate be equal to or
exceed the Aggregate Outstanding
Amount.
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6.2
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At
any time when there is a Parent Guarantee in issue and a Rating Downgrade
occurs, the Outstanding Aggregate Amount will thereafter be cash
collateralised by the deposit of an amount equal to the Aggregate
Outstanding Amount into a Designated Deposit Account and the Company
undertakes, until such time that the Company has no further obligation
under this instrument to pay the Loan Note Holders, only to use the
proceeds of the Designated Deposit Account to pay the Aggregate
Outstanding Amount, in accordance with the terms of this
instrument.
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6.3
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At
the option of the Company, if at any time when there is a Parent Guarantee
in issue and the requisite funds are deposited into the Designated Deposit
Account in accordance with clauses 6.1(b) or 6.2, then the Parent shall be
entitled to cancel the Parent Guarantee in an amount equal to such deposit
and the Parent shall have no further liability under the Parent Guarantee
to that extent.
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7.
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SECURITY
TRUSTEE
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7.1
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The
Company hereby appoints the Security Trustee to act in accordance with the
terms of Schedule 6 and by executing this Instrument the Security Trustee
consents to such appointment.
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4
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8.
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REGISTER
OF NOTEHOLDERS
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8.1
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The
Company shall cause a register to be maintained in respect of the Notes in
accordance with the provisions of schedule
3.
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8.2
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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.
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9.
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MEETINGS
OF NOTEHOLDERS
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The
provisions for meetings of holders of the Notes set out in schedule 5 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.
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10.
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FOREIGN
NOTEHOLDERS
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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 Japan, 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, Japan, Canada or Australia or to or for the account or benefit of any
North American person or resident of Japan, Canada or Australia.
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11.
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FURTHER
NOTES
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The
Company shall be entitled from time to time, by resolution of the board or of a
duly authorised committee thereof, to cancel any created but unissued Notes 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.
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12.
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GOVERNING
LAW
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12.1
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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.
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12.2
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The
Company to these presents irrevocably agrees that the courts of England
shall have exclusive jurisdiction to hear and decide any suit, action or
proceedings, and/or to settle any disputes, which may arise out of or in
connection with them and, for these purposes, each party irrevocably
submits to the jurisdiction of the courts of
England.
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13.
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CONTRACTS
(RIGHTS OF THIRD PARTIES) ACT 1999
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13.1
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Each
Noteholder shall have the right under the Contracts (Rights of Third
Parties) Act 1999 to enforce its rights against the Company under the
terms of this instrument (subject to clause
12.2).
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13.2
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Save
as provided in clause 12.1, no person other than the parties to this
instrument shall be entitled to enforce its rights under this instrument
under the Contracts (Rights of Third Parties) Act
1999.
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IN WITNESS whereof this
instrument has been executed as a deed and has been delivered on the date first
above written.
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5
SCHEDULE
1
Form
of Note
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Certificate
No.
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Transfer
No.
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Date
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Nominal
Amount
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£.....................
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LIMITED
________________________________________________________
(Registered
in England No. ●)
FLOATING
RATE (AT 0.25 PER CENT. BELOW SIX MONTH LIBOR PER ANNUM) LOAN NOTES
2015
Issue of
£30,000,000 Floating Rate (at 0.25 per cent. below six month LIBOR per annum)
Loan Notes 2015 (the "Notes"), created and issued
by UNIVERSE BIDCO LIMITED (the "Company") pursuant to the
Memorandum and Articles of Association of the Company and a resolution of the
board of directors passed on ● 2010.
THIS IS
TO CERTIFY
that of
is/are
the registered holder(s) of £● nominal of the Notes which are constituted by an
instrument made by the Company on ● 2010 (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 10 March and 10 September in each year.
Executed
as a deed by the Company
acting
by
...........................................
Director
............................................
Director/Secretary
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Notes:
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(i)
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Where
the context so admits, words and expressions defined in the instrument
shall bear the same respective meanings in the conditions endorsed
hereon.
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(ii)
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The
Notes are transferable in accordance with and subject to the provisions of
the instrument in amounts or multiples of £1. No transfer,
whether of the whole or any part of the Notes comprised in this
certificate, will be accepted for registration unless accompanied by this
certificate and lodged with the
Registrars.
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(iii)
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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 Japan, Canada or
Australia. Accordingly, unless an exemption under such Act or
laws is applicable, this Note may not be offered, sold, delivered or
otherwise transferred, directly or indirectly in or into the United
States, Japan, Canada or Australia or to or for the account or benefit of
any North American person or resident of Japan, Australia or
Canada.
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6
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(iv)
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The
Notes are repayable in accordance with the conditions endorsed
hereon.
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(v)
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A
copy of the instrument is available for inspection at the Company's
registered office at all reasonable times during office
hours.
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7
SCHEDULE
2
Conditions
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1.
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FORM
AND STATUS
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The Notes
constitute obligations of the Company and are issued in amounts or integral
multiples of £1. 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.
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2.
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REPAYMENT,
PREPAYMENT, PURCHASE AND REDEMPTION
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2.1
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If
not previously repaid or purchased, the Notes will be repaid by the
Company at par on the first Interest Payment Date falling five years after
the date of issue of the Notes together with accrued interest up to and
including that date.
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2.2
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Each
Noteholder shall be entitled to require the whole or any part (being £1 in
nominal amount or an integral multiple thereof) of the Notes held by him
to be repaid at par, together with accrued interest in accordance with
condition 2.7 on any Interest Payment Date falling at least six months
from the date of issue of the
Notes.
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2.3
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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 it at
the offices of the Registrars on behalf of the Company not less than 30
days before the relevant Interest Payment Date accompanied by such
evidence (if any) as the Directors may reasonably 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.
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2.4
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Against
such delivery, the Company shall on the relevant Interest Payment Date pay
to the Noteholder concerned the principal amount of his Note together with
accrued interest in accordance with condition
2.7.
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2.5
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The
Company may at any time after six months following the date of the issue
of the Notes pursuant to this instrument purchase any Notes by tender
(available to all holders alike) or by private treaty at any price
(provided that under the terms of the tender offer no Noteholders shall be
required to sell any of their Notes to the
Company).
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2.6
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The
Company shall be entitled to redeem all (but not some only) of the
outstanding Notes at par together with accrued interest in accordance with
condition 2.7 on not less than 30 days' prior written notice if, at any
time the aggregate amount of all the Notes outstanding is less than
£1,500,000, provided that all of the Notes so redeemed have been in issue
for more than six months.
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2.7
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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 repayment but subject to any deduction or
withholding required by law.
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3.
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EVENTS
OF DEFAULT
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3.1
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Notwithstanding
any other provisions of this instrument, each Noteholder shall be entitled
to require all or any part (being £1 in nominal amount or any integral
multiple thereof) of the Notes held by him to be repaid at par together
with accrued interest (after deduction of tax) on or at any time after the
occurrence of the following events of
default:
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8
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(a)
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the
Company fails to pay within 30 days of the due date any principal or
interest payable in respect of the Notes;
or
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(b)
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an
order is made by a court of competent jurisdiction for the winding up or
dissolution of the Company or an effective resolution is passed for the
winding-up of the Company (otherwise than in each case for the purposes of
an solvent amalgamation or reconstruction or a members' voluntary winding
up on terms previously approved by Extraordinary Resolution);
or
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(c)
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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;
or
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(d)
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it
is or becomes, in the sole opinion of the Company, unlawful for the
Company or the Parent to perform any of its obligations under the
instrument.
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3.2
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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.
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3.3
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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.
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3.4
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The
Company shall notify the Noteholders forthwith of the happening of any of
the events specified in condition
3.1.
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4.
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METHOD
OF PAYMENT
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4.1
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Payment
of the principal monies and interest payable on the Notes, or any part
thereof, may be made by cheque, warrant or money order sent through the
post at the risk of the Noteholder 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.
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4.2
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Except
as provided in this instrument or as requested by the relevant Noteholder,
all payments made or to be made by the Company under this instrument shall
be made in full without set-off or counterclaim and not subject to any
condition and free and clear of and without deduction or withholding for
or on account of any taxes or any other
purpose.
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5.
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SURRENDER
OF CERTIFICATE AND PRESCRIPTION
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5.1
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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 certificates for such Notes to the
Registrars on behalf 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, 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.
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9
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5.2
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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 interest bearing bank account and held by the Company in trust
for such Noteholder 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. The company may deduct
from such interest as the said monies may earn whilst on deposit any
expenses reasonably incurred by the Company in connection
therewith. Any amount so paid or deposited, together with
accrued interest, will as soon as is reasonably practicable be paid to the
Noteholder or his successors upon delivery of the relevant documents
referred to above at any time after a period of 6 years from the making of
the deposit. Any such amount so paid or deposited which remains unclaimed
after a period of 6 years from the making of the payment or deposit,
together with any accrued interest, 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.
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6.
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CANCELLATION
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All Notes
purchased or repaid by the Company shall be cancelled and shall not be available
for reissue.
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7.
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INTEREST
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7.1
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Until
such time as the Notes are 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
10 March and 10 September in each year (each, an "Interest Payment Date")
in respect of the Interest Period (as defined below) ending on the day
immediately preceding those dates, 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 is
payable on 10 March 2011 and is in respect of the period starting on the
date of issue of such Note up to (but excluding) 10 March
2011. In respect of the Notes such period and each subsequent
period commencing on an Interest Payment Date and ending on the date
immediately preceding the next Interest Payment Date is referred to as an
"Interest
Period".
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7.2
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The
"record date"
shall mean the close of business on the thirtieth day before the relevant
Interest Payment Date or, if such day is not a business day, then the next
following business day and every Noteholder shall be deemed for the
purposes of these presents to be the holder on such Interest Payment Date
of the Notes held by him on such preceding date, notwithstanding any
intermediate transfer or transmission of any such
Notes.
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7.3
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If
any Interest Payment Date should 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.
|
10
|
7.4
|
The
rate of interest on the Notes for each Interest Period (the "Rate of Interest") will
be determined on the basis of the following
provisions:
|
|
(a)
|
on
the date of the first issue of the Notes (or, if not a business day, the
first business day thereafter) and on the first business day of each
subsequent Interest Period for such Note(s) ("Interest Determination
Date"), the rate of interest on the Notes for each Interest Period
will be the rate per annum calculated by the Company to be 0.25 per cent.
below Six Month LIBOR. "Six Month LIBOR" is
defined as the rate per annum for the six months corresponding to the
relevant Interest Period quoted at or about 11.00 a.m. (London time) on
the applicable Interest Determination Date that appears on that page of
the Telerate Screen which displays British Bankers Association Interest
Settlement Rates for deposits of such amount as the Company shall
determine having regard to the aggregate principal amount of the Notes
then in issue in pounds for such period (such page currently designated as
page 3750) or if such page or such service is discontinued, such other
page as may replace page 3750 on that service or such other source as may
be nominated by the British Bankers Association for the purpose of
displaying British Bankers Association Interest Settlement Rates for
deposits in pounds sterling; and
|
|
(b)
|
if
on any Interest Determination Date, the rate of interest cannot be
established in accordance with paragraph 7.4 (a) above, the Rate of
Interest for the relevant Interest Period shall be calculated by reference
to such rate as the Company shall determine on the basis of quotations
made for six month deposits of a similar size and currency in any such
other inter-bank market or markets as the Company may select and, if a
rate of interest cannot be established in accordance with the foregoing
provisions for any succeeding 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.
|
|
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 by the Company of the Rate of Interest and the Company's
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 unless (and subject to compliance
with the condition 5) payment of the monies is not made by the Company in
which case interest shall continue to accrue until, but not excluding, the
date of actual payment.
|
|
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.
|
|
8.
|
REDEMPTION
IN DOLLARS
|
A
Noteholder may, by notice in writing to the Company given at the same time as
any Notice of Repayment given pursuant to condition 2.3 elect that the principal
amount of the Note(s) the subject of that Notice of Repayment shall be redeemed
in US dollars in which event the Company shall on the relevant Interest Payment
Date (the "Redemption
Date") and in full discharge of its obligations to repay such Note(s) pay
to the Noteholder an amount in US dollars obtained by converting the principal
amount outstanding of such Note(s) in US dollars (at Barclays Bank plc's spot
rate for the purchase of US dollars with sterling certified by Barclays Bank plc
as prevailing in London interbank foreign exchange market (or such replacement
service from time to time) at or about 11.00 a.m. on the date on which the
Notice of Repayment is deemed received by the Company (or where that date is not
a business day on the immediately preceding business day)) PROVIDED
THAT:
11
|
(a)
|
if
the amount payable in US dollars hereunder would otherwise exceed an
amount in US dollars obtained by converting 100.2 per cent. of the
sterling principal amount outstanding of such Note(s) into US dollars at
the spot rate for the purchase of US dollars with sterling certified by
Barclays Bank plc as prevailing at or about 11.00 a.m. on the Redemption
Date the latter amount shall be substituted therefor;
and
|
|
(b)
|
if
the amount payable in US dollars hereunder would otherwise be less than
the amount in US dollars obtained by converting 99.6 per cent. of the
sterling principal amount outstanding of such Note(s) into US dollars at
the spot rate for the purchase of US dollars with sterling certified by
Barclays Bank plc as prevailing at or about 11.00 a.m. on the
Redemption Date the latter amounts 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 not less than 75 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 would not be prejudicial to the interest of Noteholders or
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, subject to and in accordance with the provisions
of the instrument, in amounts of £1 or integral multiples
thereof.
|
|
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.
|
|
11.
|
LOST
OR DESTROYED NOTES
|
If a Note
is worn-out, defaced, lost or destroyed it may be renewed on payment of such
out-of-pocket expenses of the Company as is reasonable and on such terms (if
any) as to evidence and indemnity as the board may reasonably require but so
that in the case of defacement or wearing out the defaced or worn-out 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
|
|
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
|
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 Registrar (acting on behalf of Company) by
sending the same by post in a prepaid letter to the Registrar at Aspect House,
Xxxxxxx Road, Lancing Business Park, Lancing, West Sussex BN99 6DA or to such
other address as the Company may from time to time notify
Noteholders.
|
14.
|
SERVICE
OF NOTICES
|
Any
notice or other document addressed to a Noteholder at his registered address or
address for service in the United Kingdom is deemed to be given, if sent by
pre-paid first class post, within 24 hours or, if sent by pre-paid second class
post, within 48 hours, after the time when it was posted. In proving
such service or receipt it shall be sufficient to prove that the envelope
containing the notice or document was properly addressed, stamped and posted. A
notice or document not sent by post but left at a Noteholder's registered
address (or at another address notified for the purpose) is deemed to have been
given on the day it was left.
|
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.
|
|
||
13
NOTICE
OF REPAYMENT
To: 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 below of all/£● of the
notes in accordance with the above
conditions.
|
|
2.
|
I/We
authorise and request you:
|
|
(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:
|
|
|
Address:
|
|
|
(outside
the United States, Japan, Canada or Australia)
|
|
|
Branch
Code:
|
|
|
Account
name:
|
|
|
Account
no:
|
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 ●
●
|
Signature(s)
of Noteholder(s)1
|
|
|
Name2
|
|
|
Address:
|
|
|
(outside
the United States, Japan, Canada or Australia)
|
|
1 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.
14
|
Address:
|
|
|
(outside
the United States, Japan, Canada or Australia)
|
|
15
SCHEDULE
3
Provisions
as to the Register
|
1.
|
REGISTER
OF NOTES
|
|
1.1
|
The
Company shall cause a register to be maintained at the offices of the
Registrars on behalf of the Company (or at such other place as the Company
may specify in accordance with the Companies Act 2006) 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 the Noteholders
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
|
|
4.1
|
Subject
to paragraph 4.7, a Noteholder will be entitled (subject as hereinafter
provided) to transfer his entire holding of Notes or any part (in amounts
or integral multiples of £1) 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.
|
16
|
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
assignment, transfer, sale or other disposal of any holding of Notes will
be registered during the 30 days preceding an interest payment date or a
date by which a payment in respect of interest or principal is required to
be made by the Company.
|
|
4.5
|
No
transfer shall be registered of any Notes in respect of which a repayment
notice has been given by a Noteholder in accordance with condition 2.2 or
a redemption notice has been given by the Company in accordance with
condition 2.7.
|
|
4.6
|
All
instruments of transfer which shall be registered may be retained by the
Company.
|
|
4.7
|
The
Notes may not be transferred other
than:
|
|
(a)
|
outside
of the Forty Day Period;
|
|
(b)
|
to
or between any spouse, former spouse, civil partner, child (including any
stepchild or adopted child) of a Noteholder or lineal descendent of any of
these;
|
|
(c)
|
to
the trustees of a trust of which the principal beneficiaries (and only
people capable of being beneficiaries) are the Noteholder who established
the trust and who is transferring the relevant Notes, and/or the persons
referred to in paragraph (b) above;
|
|
(d)
|
on
the death or bankruptcy of the Noteholder;
and
|
|
(e)
|
with
the prior written consent of the
Company,
|
in each
case subject to and in accordance with the provisions of this instrument and in
amounts of £1 or integral multiples thereof. Any purported transfer of a Note or
a beneficial interest therein not in accordance with this clause 4.7 shall be
null and void ab
initio.
|
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.
|
17
|
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, worn-out, defaced or destroyed, it may be
renewed, on such terms (if any) as to evidence and indemnity as the Directors
may reasonably require, but so that in the case of defacement or wearing out the
defaced or worn-out 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.
|
|
||
18
SCHEDULE
4
Form
of Parent Company Guarantee
THIS GUARANTEE is made
on ● 2010
BY:
|
(1)
|
UNIVERSE CORPORATION a
Delaware Corporation whose registered office is at 000 Xxxxxxxxxx Xxxxxx,
00xx Xxxxx, Xxx Xxxxxxxxx, XX 00000 (the "Parent")
|
WHEREAS:
|
(A)
|
This
guarantee is supplemental to the Instrument (as defined
below).
|
THE
PARENT AGREES AS FOLLOWS:
|
1.
|
INTERPRETATION
|
|
1.1
|
Unless
otherwise defined herein, words defined in the Instrument (as defined
below) shall bear the same meaning when used in this
guarantee.
|
|
1.2
|
In
this guarantee:
|
"Company" means Universe Bidco
Limited (CRN 07289402), a subsidiary of the Parent;
"Company's Obligations" has
the meaning given to it in clause 2.1(a) (Guarantee);
"Instrument" means the loan
note instrument entered into by the Company and dated on or about the date
hereof; and
"Guarantee Obligations" has
the meaning given to it in clause 3 (Continuing Security).
|
2.
|
GUARANTEE
|
The
Parent irrevocably and unconditionally:
|
(a)
|
guarantees
to the Noteholders the punctual performance by the Company of its
obligations under the Instrument to pay to the Loan Note Holders the
principal amount of the Notes, together with all interest due and payable
thereon (the "Company's
Obligations"); and
|
|
(b)
|
undertakes
that whenever the Company does not pay any amount comprised in the
Company's Obligations when due, the Parent will immediately on demand pay
that amount as if it were the principal
obligor.
|
|
3.
|
CONTINUING
SECURITY
|
The
obligations of the Parent under clause 2 (Guarantee) (the "Guarantee Obligations") are
a continuing security and will extend to the ultimate balance of the Company's
Obligations regardless of any intermediate payment or discharge in whole or
part;
|
4.
|
NOTEHOLDERS'
PROTECTIONS
|
|
4.1
|
The
Guarantee Obligations shall not be discharged, diminished or in any way
affected as a result of any of the following (whether or not known to the
Parent or the Noteholders):
|
|
(a)
|
any
concession, time, consent or waiver given to, or composition made with,
the Company or any other person;
|
19
|
(b)
|
any
amendment to, renewal, determination, transfer, substitution or
replacement of the Instrument (however
fundamental);
|
|
(c)
|
any
purported obligation of the Company or any other person to the Noteholders
becoming wholly or in part void, invalid, illegal or unenforceable for any
reason;
|
|
(d)
|
any
incapacity, lack of power, authority or legal personality or any change in
the constitution of, or any amalgamation or reconstruction of, the
Company, the Noteholders or any other person;
or
|
|
(e)
|
any
insolvency or similar proceedings.
|
|
4.2
|
The
Parent waives any right it may have of first requiring the Noteholders to
proceed against or enforce any rights or security or claim payment from
any person before claiming from it under this
guarantee.
|
|
5.
|
NO
COMPETITION
|
|
5.1
|
Until
all the Company's Obligations have been irrevocably paid and discharged in
full, the Parent will not exercise any rights which it may
have:
|
|
(a)
|
to
exercise or enforce any of its rights of subrogation, indemnity or
contribution against the Company;
|
|
(b)
|
to
bring legal or other proceedings for any order requiring the Company to
make any payment or perform any obligation in respect of which this
guarantee has been provided; or
|
|
(c)
|
to
claim or prove in a liquidation or other insolvency proceeding of the
Company in competition with the
Noteholders.
|
|
6.
|
PAYMENTS
|
|
6.1
|
All
payments to be made by the Parent under this guarantee are to be made to
the Noteholders:
|
|
(a)
|
in
immediately available cleared funds in the same currency in which the sums
comprised in the Company's Obligations are denominated to the account each
Noteholder specifies for this purpose;
and
|
|
(b)
|
in
full without set-off or counterclaim and not subject to any condition and
free and clear of and without deduction or withholding for or on account
of any taxes or any other purpose. If any deduction or
withholding from any payment is required by law then the Parent will
promptly pay to the Noteholders an additional amount being the amount
required to procure that the aggregate net amount received by the
Noteholders will equal the full amount which would have been received by
it had no deduction or withholding been
made.
|
|
7.
|
CANCELLATION
|
The
Parent shall be entitled to cancel this guarantee in accordance with the terms
of clauses 6.2 and 6.3 of the Instrument.
|
8.
|
MISCELLANEOUS
|
|
8.1
|
For
the avoidance of doubt, this instrument is not a demand guarantee or
performance bond and the Parent shall be entitled to raise defences to its
liability hereunder save for whether those defences have been expressly
excluded by the terms of this
guarantee.
|
20
|
8.2
|
No
failure or delay by any Noteholder in exercising any right under this
guarantee shall operate as a waiver of that right nor shall any single or
partial exercise of any right preclude any other or further
exercise of that or any other
right.
|
|
8.3
|
If
any provision of this guarantee is or becomes invalid, illegal or
unenforceable in any respect under any law, the validity, legality and
enforceability of the remaining provisions shall not be affected or
impaired in any way.
|
|
9.
|
GOVERNING
LAW
|
This
guarantee shall be governed by and construed in all respects in accordance with
English law and the Parent agrees that the courts of England shall have
non-exclusive jurisdiction to hear and decide any suit, action or proceedings
and/or to settle any disputes, which may arise out of or in connection with this
guarantee and, for these purposes, the Parent irrevocably submits to the
jurisdiction of the courts of England.
IN WITNESS whereof this
instrument has been executed as a deed on the date first above
written.
|
Signed
as a deed on behalf of
UNIVERSE CORPORATION
acting by:
|
)
)
)
)
|
|||
|
Name:
Title:
|
||||
|
Who,
in accordance with the laws of that territory, is acting under the
authority of the company.
|
||||
|
|
||
21
SCHEDULE
5
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 one-tenth 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 not less than one-tenth 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 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.
22
|
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
|
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
|
23
|
(b)
|
on
a poll every person who is so present shall have one vote in respect of
every £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.
|
|
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.
|
24
|
16.
|
POWERS
OF MEETINGS OF NOTEHOLDERS
|
|
16.1
|
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:
|
|
16.2
|
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;
|
|
16.3
|
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;
|
|
16.4
|
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 an instrument in substitution to this
instrument embodying any such modification or abrogation;
and
|
|
16.5
|
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.
25
|
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.
|
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.
|
|
||
26
SCHEDULE
6
ROLE
OF THE SECURITY TRUSTEE
|
|
||
27
|
Executed
as a deed by
UNIVERSE BIDCO LIMITED
acting by
……………………………………………………………:
|
)
)
)
)
|
|||
|
Signature
of director
Signature
of witness
Name
of witness
Address
of witness
Occupation
of witness
|
…………………………………………………………………
……………………………………………………………………
………………………………………………………………….
………………………………………………………………….
………………………………………………………………….
………………………………………………………………….
……………………………………………………………………
|
|||
|
Executed
as a deed by
[SECURITY TRUSTEE]
acting by
……………………………………………………………:
|
)
)
)
)
|
|||
|
Signature
of director
Signature
of witness
Name
of witness
Address
of witness
Occupation
of witness
|
…………………………………………………………………
……………………………………………………………………
………………………………………………………………….
………………………………………………………………….
………………………………………………………………….
………………………………………………………………….
……………………………………………………………………
|
|||
|
|
||
28
