1
EXHIBIT 2.2
THIS INSTRUMENT is made the fourteenth day of July 2000 by LYCIDAS (323) LIMITED
(Company No. 207527) having its registered office at 292 St Vincent Street,
Glasgow, G2 5TQ ("the Company")
WHEREAS
The Company has determined to constitute (pound Sterling)4,704,773 in nominal
value of Guaranteed Loan Notes 2000-2005 ("the Loan Notes") in the manner
hereafter appearing.
NOW THIS INSTRUMENT WITNESSES AND THE COMPANY DECLARES AS FOLLOWS:-
1 CONSTITUTION
1.1 The Loan Notes are constituted by a resolution of the board of
directors of the Company passed on 14 July 2000. The Loan
Notes are subject to a guarantee in favour of the holder
thereof by Bank One NA ("the Guarantor") and are issued
pursuant to a Sale Agreement between inter alia the Company
and the Noteholders dated 26 June 2000 ("the Agreement").
1.2 Each Noteholder shall have the right to acquire (by
subscription at nominal value of an amount up to or equal to
such Noteholder's holding of Loan Notes, such amount to be
payable in full on subscription) additional loan notes to be
issued by a subsidiary of the Company ("Additional Notes") on
terms and conditions substantially the same as those
applicable to the Loan Notes, except as follows:
1.2.1 the Additional Notes shall not carry any right to
acquire additional securities;
1.2.2 the rate of interest on the Additional Notes shall be
1% below the rate per annum specified in Condition
4.1; and
1.2.3 the Additional Notes will be guaranteed by the
Company and not by the Guarantor.
1.3 The Company shall be at liberty by resolution of its Directors
from time to time to create and issue further unsecured Loan
Notes either so as to be identical in all respects with the
Loan Notes hereby constituted or upon such terms as to
interest redemption and otherwise as the Directors shall think
fit but save in respect of the Additional Notes no such
further Notes shall form a single series with the Loan Notes
or be constituted by deed or instrument expressed to be
supplemental hereto.
2 CERTIFICATE
2.1 The Loan Notes are represented by a series of Loan Note
certificates in amounts and multiples of(pound Sterling)1. All
the certificates for the time being issued and outstanding
shall
2
rank pari passu in all respects.
2.2 If any certificate for Loan Notes is defaced, lost or
destroyed, it shall be replaced (free of charge) on such terms
as to evidence and indemnity as the directors may reasonably
require provided always that, in the case of defacement, the
defaced certificate shall be surrendered before the new
certificate is issued.
3 REGISTER
3.1 The Company will keep a register at its registered office
showing the names and addresses of the Noteholders together
with the amounts of their respective holdings of Loan Notes
and the dates upon which they were respectively registered as
holders thereof. The Noteholders (or any of them or any person
authorised in writing by any of them) shall be at liberty at
all reasonable times during office hours to inspect that
register or to make copies thereof.
3.2 The Company shall be entitled, but shall not be bound, to
accept and, in the case of acceptance, shall record in such
manner as it may think fit, notice of any trust or trusts in
respect of any Loan Notes. Notwithstanding any such acceptance
and/or the making of any such record, the Company shall not be
bound to see to the execution, administration or observance of
any trust, whether express, implied or constructive, in
respect of Loan Notes and shall be entitled to recognise and
give effect to the acts and deeds of the registered holders of
Loan Notes as if they were the absolute owners thereof. For
the purposes of this sub-clause, "trust" includes any right in
respect of Loan Notes other than an absolute right thereto in
the registered holder thereof for the time being.
4 INTEREST
4.1 Interest shall accrue on the principal nominal amount of the
Loan Notes outstanding from time to time (subject to condition
4.3) at the rate per annum which is 1% below the arithmetic
mean of the rates quoted as of 11.00am on the first business
day of each interest period as the interest rates offered in
the London Inter-bank market for three month sterling
borrowing (and so that the first interest period shall
notwithstanding the date of this instrument be deemed to have
commenced on 1 July 2000 and the next such period shall
commence on 1 October 2000). Interest payments will be made
(subject to Clause 14) half-yearly in arrears on 30 June and
31 December in each year.
4.2 The Company shall deduct from any interest payments payable
pursuant to condition 4.1, any income or other tax required by
law to be deducted therefrom and any Carrying Costs as
referred to in Clause 14.
4.3 Interest shall cease to accrue on the Loan Notes on the due
date for redemption
3
thereof save to the extent that redemption is not then
effected by the Company (otherwise than as a consequence of
the Noteholder failing to comply with its obligations under
condition 8.2).
5 REDEMPTION
5.1 All Loan Notes to be redeemed pursuant to this condition 5
shall be redeemed at par together with all accrued interest
thereon down to and including the date of actual redemption
(less any income tax or other tax required by law to be
deducted) and subject to Clause 14.
5.2 Subject to conditions 5.3 and 9, the whole of the Loan Notes
shall be redeemed by the Company on 31 December 2005.
5.3 A Noteholder may, at any time on or after twelve months
following the issue of the Loan Notes (and in the case of
successive partial redemptions, from time to time thereafter
until the final redemption date), serve written notice on the
Company requiring the Company to redeem all/part of the Loan
Notes held by that Noteholder and the Company shall comply
with such written notice within not more than 21 days of
receipt thereof. The Company shall be under no obligation to
advise any other Noteholder of receipt of such notice, or of
redemption of such Loan Notes, nor shall the Company be ipso
facto obliged to redeem any other Loan Notes by virtue of such
redemption.
5.4 All Loan Notes redeemed or purchased by the Company shall be
cancelled and the Company shall not be at liberty to keep the
same alive for the purposes of re-issue or to re-issue the
same.
5.5 The Company shall be entitled to set off against any moneys
payable to any Noteholder in respect of the Loan Notes
(whether by way of principal or interest) any liability of any
Noteholder to the Company under the Agreement but only in
accordance with Clause 7.17 of the Agreement. In the event and
to the extent that the Company shall validly exercise such
right of set off against the principal amount of the Loan
Notes, then the liability of the Company under the Loan Notes
shall be reduced accordingly by cancellation of the relevant
number of Loan Notes (rateably against the registered holders
of the Loan Notes at the time of such set-off) and references
in these Conditions to "the Loan Notes" shall be deemed to be
a reference to the principal amount of the Loan Notes as
reduced by such set-off. Subject thereto, the principal moneys
and accrued interest (if any) payable in respect of Loan Notes
to be redeemed shall be paid without regard to any equities
between the Company and the Noteholder(s) as to any right of
set-off or counterclaim.
5.6 No transfer of any of the Loan Notes shall be made unless the
transferee expressly
4
acknowledges that he is bound by the right of set off referred
to in Condition 5.5 in respect of the Loan Notes transferred
to him.
6 ACCOUNTS AND NOTICES
A copy of every balance sheet, profit and loss account and other
document required by law to be annexed thereto (together with a copy of
the auditor's report thereon) shall be sent by the Company to every
holder of Loan Notes at the time of issue thereof to the members of the
Company.
7 TRANSFER
7.1 Other than following upon the death of any Noteholder (and
then only to such Noteholders personal representatives and
assignees following grant of confirmation on such Noteholder's
estate (in Scotland) or grant of probate (in England)), the
Loan Notes may only be transferred (and then only in amounts
and multiples of (pound Sterling)50,000 nominal of Notes) with
the approval of the directors of the Company and that by
instrument in writing in such form as the directors (acting
reasonably) may approve.
7.2 Every instrument of transfer must be signed by the transferor.
The transferor shall be deemed to remain the owner of the Loan
Notes to be transferred until the name of the transferee is
entered in the register maintained pursuant to condition 3 in
respect thereof. Provided condition 7.3 is met, the Company
shall forthwith enter the name of each such transferee in the
said register and issue to such transferee a certificate for
its holding of Loan Notes.
7.3 Every instrument of transfer must be left for registration at
the registered office of the Company accompanied by the
certificate relative to the Loan Notes to be transferred and
such other evidence as the directors of the Company may
reasonably require to prove the title of the transferor of its
right to transfer the relevant Loan Notes.
7.4 All instruments of transfer which are registered will be
retained by the Company together with the cancelled stock
certificates.
7.5 No fee shall be payable for the registration of any transfer
or for the registration of any confirmation, probate, letters
of administration, certificate of marriage or death, power of
attorney or other documents relating to or affecting title to
Loan Notes.
7.6 If any Noteholder sells or otherwise disposes of part only of
its Loan Notes, it shall be entitled to receive a stock
certificate from the Company for the balance of the Loan Notes
retained by it and that without payment of any fee.
5
8 PAYMENT
8.1 Repayment of principal and payment of interest in respect of
Loan Notes will be made subject to Clause 14 by cheque payable
to the registered holder or, in the case of joint holders, to
the order of the first named holder and will be sent by
registered post at the risk of the Noteholder to the
registered address of such holder.
8.2 Every Noteholder whose Loan Notes are due to be redeemed under
these conditions shall, not later than the due date for
redemption, deliver to the Company, at its registered office,
the certificate(s) for its Loan Notes in order that the same
may be cancelled. Upon such delivery and against a receipt for
the principal moneys payable in respect of the Loan Notes to
be redeemed, the Company shall make payment to the Noteholder.
8.3 If any Noteholder whose Loan Notes are due to be redeemed
under these conditions shall fail or refuse to deliver the
certificate(s) therefor at the time and place fixed for
redemption or shall fail or refuse to accept payment of the
moneys payable in respect thereof, the moneys payable to such
Noteholder shall be paid into a separate bank account and held
by the Company in trust for such Noteholder. Such payment
shall be deemed to be a payment to such Noteholder and the
Company shall thereby be discharged from all obligations in
connection with the relevant Loan Notes. If the Company
exercises the foregoing power, it shall not be responsible for
the safe custody of such moneys or for interest thereon except
such interest (if any) as accrues on the moneys whilst on
deposit (under deduction of any expenses incurred by the
Company in connection therewith). Any such amount so deposited
which remains unclaimed after a period of twelve years from
the making of the deposit shall revert to the Company.
8.4 The receipt of the registered holder for the time being of any
Loan Notes or, in the case of joint registered holders, the
receipt of any of them in respect of any amounts payable on
those Loan Notes shall 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 Loan Notes or moneys.
9 EVENTS OF DEFAULT
9.1 Notwithstanding condition 5, each holder of Loan Notes may
treat the occurrence of any of the following events as an
event of default and by written notice ("Default Notice")
require that the Loan Notes shall be redeemed at par and all
accrued interest thereon down to the actual date of redemption
shall be paid forthwith if:-
9.1.1 the Company makes default in the due performance or
observance of any of its obligations or undertakings
pursuant to the Loan Notes conditions (including, for
the avoidance of doubt, payment of any sum due in
respect of
6
the Loan Notes) and such default is not remedied
within twenty eight days of it occurring;
9.1.2 diligence (other than an arrestment on the dependence
of an action) is executed against or a lien exercised
over, any material part of the assets of the Company
and is not discharged within twenty-eight days of
taking effect;
9.1.3 the Company ceases to carry on its business or
substantially the whole of its business;
9.1.4 the Company suspends payment of its debts or is
unable or is deemed to be unable to pay its debts
(within the meaning of section 123 of the Insolvency
Act 1986 or any statutory modification or
re-enactment thereof);
9.1.5 a proposal is made or a nominee or supervisor is
appointed for a composition in satisfaction of the
debts of the Company or for a scheme of arrangement
of the affairs of the Company or the Company
commences negotiations with one or more of its
creditors with a view to the general readjustment or
rescheduling of all or part of its debts or enters
into any composition or other arrangement for the
benefit of its creditors generally or any class of
creditors or proceedings are commenced in relation to
the Company under any law, regulation or procedure
relating to the reconstruction or readjustment of
debt; or
9.1.6 control of the Company passes to any person or
persons (acting individually or in concert) without
the prior written consent of the Noteholders
("control" having the meaning ascribed to it in
relation to a body corporate by Section 840 of the
Income and Corporation Taxes Act 1988).
9.2 Notwithstanding condition 5, an event of default shall be
deemed to have occurred and each holder of Loan Notes shall be
deemed to have served a Default Notice in respect thereof at
the close of business or the day prior to any of the following
events:-
9.2.1 an order is made or an effective resolution is passed
for the winding up or dissolution of the Company
(other than for the purposes of a solvent
reconstruction or amalgamation to which the prior
sanction of the Noteholders has been obtained, such
sanction not to be unreasonably withheld or delayed)
or the Company files a petition for its own
liquidation; or
9.2.2 a receiver, administrator or similar official is
appointed over the whole or any material part of the
undertaking or assets of the Company.
7
10 POWER OF NOTESHOLDERS TO INSTITUTE PROCEEDINGS
At any time after the Loan Notes (or any part thereof) registered in a
Noteholder's name shall become due and redeemable pursuant to
conditions 5 or 9 hereof, the Noteholder may (subject always to
condition 8.1) without further notice institute such proceedings as it
may think fit to enforce payment of the monies then due to it.
11 COMPANY'S FURTHER UNDERTAKINGS
The Company undertakes to the Noteholders that it shall:-
11.1 notify the Noteholders of any event of default mentioned in
condition 9 forthwith upon becoming aware of the occurrence
thereof; and
11.2 duly perform and observe all the conditions, provisions and
obligations on its part contained in these conditions.
12 NOTICES
12.1 Any notice hereunder may be given by delivering the same by
hand or sending the same by post in a prepaid letter
addressed, if to the Company, to its registered office or, if
to a Noteholder, to its last address notified to the Company
(as the case may be). In the case of joint registered holders
of any Loan Notes, a notice given to the Noteholder whose name
appears first in the register maintained pursuant to condition
3 shall be sufficient notice to all the joint holders.
12.2 Every such notice shall, if delivered by hand, be deemed to
have been served when delivered and shall, if sent by first
class mail, be deemed to have been served forty eight hours
after the time of posting or, if sent by second class mail, be
deemed to have been served seventy two hours after the time of
posting and, in proving such service, it shall be sufficient
to prove that the letter containing the notice was properly
addressed, stamped and posted.
13 MEETINGS OF NOTEHOLDERS
13.1 The Company or the Registered Holder or Holders of not less
than one-tenth in nominal value of the Notes for the time
being outstanding may at any time convene a meeting of the
Registered Holders of the Notes and the provisions of the
Articles of Association of the Company with regard to General
Meetings shall mutatis mutandis apply to any such meeting
except that the necessary quorum shall be two persons at least
holding or representing by proxy not less than one-tenth in
nominal value of the Notes for the time being outstanding.
Seven days notice shall be given to the Company of any such
meeting as shall not be convened by the Company.
8
13.2 A General Meeting of the Registered Holders of the Notes may
by Extraordinary Resolution sanction any modification or
alteration of the rights of the Holders of the Notes against
the Company and any such Extraordinary Resolution shall be
binding upon all the Holders of the Notes whether present or
not present at the Meeting provided that notwithstanding
anything herein contained no such Extraordinary Resolution
shall be binding on the Company without the express agreement
of the Company.
13.3 For the purposes of this Condition the expression
"Extraordinary Resolution" means a Resolution passed at a
meeting of the Registered Holders of the Notes duly convened
and held by a majority of not less than three-fourths of the
votes given at such poll one vote being allowed for every
(pound Sterling)1 nominal of Notes.
14 GUARANTEE COSTS
This Clause 14 shall apply in relation to all costs, charges,
commission and expenses of any nature whatsoever payable to the
Guarantor in respect of the maintenance in force of any Loan Note
Guarantee (as defined in the Agreement) (such costs hereinafter being
"Carrying Costs"). The accrued Carrying Costs (which have not already
been set off) shall be set off against all moneys due and payable to
the Noteholders in reduction (pro rata) of such amounts thereof as are
due and payable to each Noteholder in respect of the Loan Notes
(whether by way of principal or interest).
15 GOVERNING LAW
The Loan Notes are issued subject to and shall be governed by the law
of Scotland and the Company and the Noteholders hereby prorogate the
exclusive jurisdiction of the Scottish Courts: IN WITNESS WHEREOF this
Instrument has been entered into as a Deed the day and year first above
written and is executed by the Company as follows:
Executed for and on behalf of
Lycidas (323) Limited
by Director
and Director/Secretary
at on 2000 -------------------------
-------------------------