PURICORE
INTERNATIONAL LIMITED
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1
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2 Constitution of the Loan Notes
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2
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3 Redemption of Loan Notes
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3
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4
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4
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4
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4
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5
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5
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5
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11 Substitution and replacement
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6
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7
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13 Governing law and jurisdiction
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8
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9
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Schedule 2
Redemption Notice
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10
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11
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11
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2 Foreign currency election
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11
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11
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12
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13
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13
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2 Transfer and transmissions
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13
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14
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4 Replacement of Certificates
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15
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Schedule 5
Meetings of Noteholders
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16
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This
instrument is dated 4 th
August 2009
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(1)
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Puricore International
Limited incorporated and registered in
England and Wales with company number 02695450 whose registered
office is at 2 Bloomsbury Street, London, WC1B 3ST ( Issuer
).
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(2)
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Labcaire Systems Limited
incorporated and
registered in England and Wales with company number 02683459 whose
registered office is 175 Kenn Road, Clevedon, North Somerset, BS21
6LH ( First Guarantor ).
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(3)
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Puricore Plc
incorporated and
registered in England and Wales with company number 05789798 whose
registered office is at 58 Davies Street, London, W1K 5JF (
Second Guarantor ).
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(A)
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The Issuer has, pursuant to its
Memorandum and Articles of Association and by resolution of its
Board of Directors passed on 3 August 2009, resolved to create
up to a maximum nominal amount of $1,000,000, a 0% Fixed Rate
Unsecured Loan Note, to be constituted in the manner set out
below.
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(B)
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The First Guarantor and the Second
Guarantor have agreed to guarantee the repayment by the Issuer of
the Loan Note on the terms and conditions set out below.
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1.1
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The definitions and rules of
interpretation in this clause 1 apply in this
instrument.
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Articles:
the
articles of association from time to time of the Issuer.
Business
Day: a day
(other than a Saturday, Sunday or public holiday) on which
commercial banks are open for general business in the City of
London.
Certificates:
the
certificates in respect of Loan Note.
Conditions:
the
conditions referred to in clause 2 and set out in Schedule
3.
Directors:
the board
of directors of the Issuer from time to time, or a duly authorised
committee of the board.
Loan
Note: the
guaranteed interest free loan note of the Issuer constituted by
this instrument.
Noteholders:
the several
persons from time to time entered in the Register as the holders of
the Loan Note, and any references to a holder’s Loan Note
means the Loan Note in respect of which he is so
registered.
Redemption
Notice: a notice
substantially in the form set out in Schedule 2.
Register:
the
register of the Loan Note (provisions relating to which are set out
in Schedule 4).
1
Special
Resolution: a
resolution passed at a meeting of the Noteholders (duly convened
and held in accordance with the provisions of Schedule 5) by a
majority consisting of not less than three-fourths of the persons
voting upon a show of hands and, if a poll is demanded, by a
majority consisting of not less than three-fourths of the votes
given on the poll.
Subsidiary:
a
“subsidiary”, as defined in section 736 of the
Companies Act 1985, of the Issuer and any other company which is a
subsidiary (as so defined) of a company which is itself a
subsidiary of the Issuer. Unless the context otherwise requires,
the definition of Subsidiary will apply to any company as it is at
the time the definition is applied.
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1.2
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Any phrase introduced by the terms
including , include or any similar expression shall
be construed as illustrative and shall not limit the sense of the
words preceding those terms.
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1.3
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References to any statute or
statutory provision shall include references to such statute or
statutory provision as in force at the date of this instrument and
as subsequently re-enacted or consolidated and shall include
references to any statute or statutory provision of which it is a
re-enactment or consolidation.
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1.4
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A person includes a corporate or
unincorporated body.
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1.5
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References to the singular shall
include the plural, and vice versa.
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1.6
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References to clauses and schedules
are (unless expressly stated otherwise) to clauses of, and
schedules to, this instrument.
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1.7
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Clause and schedule headings do not
affect the interpretation of this instrument.
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1.8
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References to any Loan Notes as
outstanding mean that they are in issue, unredeemed and
uncancelled.
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2
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Constitution of the Loan
Note
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2.1
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The principal amount of the Loan
Note constituted by this instrument is limited to $1,000,000. The
Loan Note may be issued in denominations of any amount and shall be
transferable in whole or (in amounts and integral multiples of
$250,000) in part, as provided in Schedule 4.
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2.2
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This instrument shall operate for
the benefit of the Noteholder, who may sue for the performance or
observance of its provisions in his own right so far as his holding
of the Loan Note is concerned, and for all persons claiming through
or under him. The Issuer shall comply with the terms of the Loan
Note and the Conditions and the Loan Note shall be held subject to
the Conditions. The Conditions and schedules shall be deemed to be
incorporated in this instrument and shall be binding on the Issuer,
the first Guarantor, the Second Guarantor, and the Noteholder and
all persons claiming through or under him.
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2.3
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Until such time as the Loan Note is
redeemed or repurchased in accordance with the provisions of this
instrument and save as set out in clause 3.5, no interest shall
accrue on the principal amount of the Loan Note.
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2.4
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Further loan notes may be issued
whenever, to whomever, and on whatever terms and conditions the
Directors please. When issued and while they are outstanding, the
loan notes shall rank pari passu equally and rateably without
discrimination or preference and as a guaranteed, but otherwise
unsecured obligation of the Issuer.
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2
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2.5
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No application shall be made to any
stock exchange (whether in Great Britain or elsewhere) for
permission to deal in, or for an official or other listing or
quotation in respect of, the Loan Note.
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3
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Redemption of the Loan
Note
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3.1
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The Loan Note not previously repaid
or repurchased by the Issuer shall be repaid in four equal
instalments of $250,000 at par on each anniversary of the date of
this instrument up until and including the fourth
anniversary.
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3.2
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Notwithstanding any other
provisions of this instrument, the Noteholder shall be entitled to
demand immediate redemption in full of the Loan Note at par in any
of the following events (and so that a reference in this clause 3.2
to the Issuer shall be deemed to include a reference to the Issuer
and / or the First Guarantor and / or the Second
Guarantor:
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3.2.1
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the Issuer fails to pay when due
any principal payable on repayment of the Loan Note; or
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3.2.2
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the Issuer is in default for more
than 21 days (after notification to the Issuer of any such
default has been received from the Noteholder) in the performance
or observance of or compliance with any of its other undertakings
contained in this instrument; or
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3.2.3
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an order is made or an effective
resolution is passed for the winding-up of the Issuer (other than a
solvent winding-up for the purposes of amalgamation or
reconstruction), or the Issuer stops or threatens to stop payment
of its debts, or the Issuer ceases or threatens to cease to carry
on its business; or
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3.2.4
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an administrator of the Issuer is
appointed or documents are filed with the Court for the appointment
of an administrator or notice is given of an intention to appoint
an administrator by the Issuer or its Directors or by a qualifying
floating charge holder (as defined in paragraph 14 of
Schedule B1 of the Insolvency Act 1986); or
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3.2.5
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a receiver or similar official is
appointed in respect of the whole or a substantial part of the
undertaking and assets of the Issuer; or
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3.2.6
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any distress or execution (or other
similar process) is levied upon or enforced against all or a
substantial part of the assets or property of the Issuer and is not
fully paid out or discharged within 21 days; or
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3.2.7
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any process or event with an effect
analogous to any of those referred to in clause 3.2.3 to clause
3.2.6 (inclusive) happens to the Issuer in a jurisdiction
outside England and Wales; or
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3.2.8
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it is or will become unlawful for
the Issuer to perform or comply with any of its obligations under
this instrument, or any such obligation is not or ceases to be
legal, valid and binding,
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3.3
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provided that a written demand
specifying the event is received by the Issuer while the event is
continuing.
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3.4
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The Loan Note repaid or purchased
pursuant to any of the provisions of this instrument shall be
automatically and immediately cancelled and shall not be
reissued.
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3
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3.5
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If the Issuer fails to pay when due
any principal payable on repayment of the Loan Note, then, without
prejudice to any other right of the Noteholder, the Issuer shall
pay interest on the full amount of the Loan Note then outstanding
at the rate of 2% above LIBOR. Such interest shall accrue on a
daily basis from the due date until the date of actual payment of
the Loan Note, whether before or after judgment and shall be
compounded quarterly.
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4.1
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From and after the date of this
instrument and so long as any amount is payable by the Issuer in
respect of the Loan Note, each of the Issuer, the First Guarantor
and the Second Guarantor undertakes to duly perform and observe the
obligations on its part contained in this instrument to the intent
that the provisions of this instrument shall enure for the benefit
of the Noteholder.
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5.1
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A Certificate shall be issued under
the seal of the Issuer (or executed by the Issuer in any other
manner authorised by the Companies Act 1985) and shall be in the
form or substantially the form set out in Schedule 1. The
Certificate shall refer to this instrument and bear a denoting
number and have the Conditions endorsed on it or attached to it,
together with a form of the Redemption Notice.
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6.1
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Without prejudice to all other
powers, however arising, of the Issuer, nothing in this instrument
shall prevent the Issuer from:
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6.1.1
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exercising its borrowing powers in
any way, including by incurring any indebtedness ranking pari passu
with the Loan Note, or by creating and issuing further unsecured
loan notes either so as to be identical in all respects and form a
single series with the Loan Notes or upon such terms as to
interest, redemption and otherwise as the Directors shall think
fit; or
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6.1.2
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disposing of, granting security
over or dealing in any other way with any of its business and
assets in whole or in part, or changing the nature of its business
in any way; or
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6.1.3
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procuring or permitting any
Subsidiary to exercise its borrowing powers in any way, or to
dispose of, grant security over or deal in any other way with any
of its business or assets in whole or in part, or to change the
nature of its business in any way.
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7.1
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The Issuer may from time to time
(by deed expressed to be supplemental to this instrument) amend any
provisions of this instrument (including the Conditions) if the
amendment is previously sanctioned by a Special
Resolution.
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7.2
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The Issuer shall at all times allow
any holder of the outstanding Loan Note to inspect a copy of this
instrument during normal business hours on reasonable notice and
(provided reasonable expenses of the Issuer in doing so are paid)
shall on request supply the Noteholder as soon as reasonably
practicable with a copy of this instrument.
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4
The
Noteholder shall be recognised by the Issuer as entitled to his
Loan Note free from any equity, defence, set-off or cross-claim on
the part of the Issuer against the original, or any intermediate
holder of, his Loan Note.
Any meeting
of Noteholder shall (subject to the provisions contained in
Schedule 5) be convened, conducted and held in all respects as
nearly as possible in the same way as is provided in the Articles
for general meetings of the Issuer.
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10.1
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Any liability incurred by the First
Guarantor and Second Guarantor (together “ the
Guarantors ”) under this clause 10 shall be joint and
several.
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10.2
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The Guarantors unconditionally and
irrevocably guarantee to the Noteholder for the time being that if,
for any reason whatsoever, the principal amount of his outstanding
Loan Note (or any part of it) is not paid in full by the Issuer on
the due date it shall (subject to the limitations set out in this
guarantee) on demand in writing by the Noteholder pay to him such
sum as shall be equal to the amount in respect of which such
default has been made and all interest payable in accordance with
clause 3.5, provided that the maximum aggregate liability of the
Guarantors under this guarantee in respect of the principal amount
of the Loan Note (and excluding, for the avoidance of doubt,
interest payable in accordance with clause 3.5 which may be claimed
in addition to such amount) shall not exceed an amount equal to
$1,000,000.
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10.3
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Upon payment in full by the
Guarantors of the principal amount of the Loan Note, the Loan Note
shall be deemed to have been transferred to the
Guarantors.
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10.4
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In accordance with clause 10.1, the
Guarantors shall be liable as if they were a principal debtor for
all moneys payable pursuant to this instrument (notwithstanding
that as between the Issuer and the Guarantors, the Guarantors are a
surety only) and shall not be exonerated or discharged from
liability under this guarantee:
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10.4.1
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by time or indulgence being given
to, or any arrangement or alteration of terms being made with, the
Issuer; or
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10.4.2
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by the liquidation, whether
voluntary or compulsory, of the Issuer or by the appointment of an
administrative receiver or an administrator in relation to the
Issuer or its assets; or
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10.4.3
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by any act, omission, matter or
thing whatsoever whereby the Guarantors as surety only would or
might have been so exonerated or discharged; or
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10.4.4
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by any exercise by the Noteholder
of any of the powers conferred upon them by, and in accordance with
the provisions of, Schedule 5 and to be exercised by Special
Resolution.
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10.5
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Each of the covenants and
guarantees contained in this clause 10 shall be a continuing
covenant and guarantee binding on the Guarantors and shall remain
in operation until the principal amount of the outstanding Loan
Note and all interest payable in accordance with 3.5 has been fully
paid or satisfied or, if earlier, until the Guarantors have no
liability under this instrument in respect of the Loan
Note.
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10.6
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This clause 10 shall be deemed to
contain as a separate and independent stipulation a provision to
the effect that any sums of money which may not be recoverable from
the Guarantors by virtue of a guarantee (whether by reason of any
legal limitation, disability, incapacity or any other fact or
circumstance and whether known to the Noteholders or not) shall
nevertheless be recoverable from the Guarantors as principal
debtors.
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10.7
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Each Noteholder shall be entitled
to determine from time to time when to enforce this guarantee as
regards his outstanding Loan Note and may from time to time make
any arrangements or compromise with the Guarantors in relation to
the guarantee given by this clause 10 which such Noteholder may
think expedient and/or in his own interest.
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10.8
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Any payment to be made by the
Guarantors under this instrument shall be made without regard to
any lien, right of set-off, counterclaim or other analogous right
to which the Guarantors may be, or claim to be, entitled as against
any Noteholder.
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10.9
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Payment by the Guarantors to any
Noteholder made in accordance with this clause 10 shall be deemed a
valid payment for all purposes of this clause 10 and shall
discharge the Guarantors from their liability under this clause 10
to the extent of the payment, and the Guarantors shall not be
concerned to see to the application of any such payment.
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10.10
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In relation to any demand made by a
Noteholder for payment by the Guarantors pursuant to this clause
10:
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10.10.1
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such demand shall be in writing,
shall be accompanied by the relevant Certificates and shall
state:
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10.10.1.1
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the full name and registered
address of such Noteholder and the amount of principal which is
claimed;
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10.10.1.2
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that the Loan Note in respect of
which such demand is made has not been cancelled, redeemed or
repurchased by the Issuer;
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10.10.1.3
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that the sum demanded is due and
payable by the Issuer, that all conditions and demands prerequisite
to the obligations of the Issuer in relation to the Loan Note have
been fulfilled and made, that any grace period relating to those
obligations has elapsed and that the Issuer has failed to pay the
sum demanded;
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10.10.1.4
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the date on which payment of the
principal in respect of which the demand is made should have been
made to the Noteholder by the Issuer; and
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10.10.1.5
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the bank account details of a bank
in the United Kingdom to which payment by the Guarantors is to be
credited.
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11
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Substitution and
replacement
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11.1
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The Issuer may, without the consent
of the Noteholder, but with the consent of the Guarantors,
substitute in place of the Issuer (or of any previous substitute
under this clause 11) as the principal debtor or debtors
under:
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11.1.1
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this instrument or any instrument
expressed to be supplemental to this instrument; and
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11.1.2
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the Loan Note,
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the Second Guarantor (
Substituted Company ) by means of an instrument (
Substitute Instrument ) executed by the Issuer and the
Guarantors in such form as they shall agree, a copy of which shall
be made available for inspection by Noteholder.
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11.2
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Compliance with the provisions of
this clause 11 shall operate to release the Issuer from all or any
of its obligations under this instrument or any previous Substitute
Instrument and the Loan Note, but without prejudice to any claims
which have arisen prior to the date on which the substitution takes
effect. Not later than fourteen days after the execution of any
Substitute Instrument the Issuer shall give notice of the
substitution to the Noteholders. The non-receipt of notice by or
the accidental omission to give notice to any Noteholder shall not
invalidate any substitution pursuant to this clause 11.
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11.3
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Upon the execution of the
Substitute Instrument and compliance with the other provisions of
this clause 11, the Substituted Company shall be deemed to be named
in this instrument, on the Loan Note and in the Conditions as the
principal debtor in the place of the Issuer as provided in the
Substitute Instrument. The existing Certificates held by the
Noteholders (including the Conditions endorsed on them) shall not
be cancelled but shall remain valid in relation to the Substituted
Company.
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11.4
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The guarantee given by the First
Guarantor pursuant to clause 10 ( Guarantee ) shall remain
in full force and effect notwithstanding, and shall not be
prejudiced in any way by any substitution made in accordance with
this clause 10 and further shall, in accordance with clause 11,
continue in force as a guarantee of the obligations of any
Substituted Company to pay principal and interest on the Loan Note
on the terms set out in this instrument and in the Conditions,
subject always to the conditions of the Guarantee, in all cases in
accordance with this clause 11.
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11.5
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The Guarantee (or, as the case may
be, any Substitute Guarantee) may be replaced at the discretion of
the Issuer with a further guarantee ( Substitute Guarantee )
provided that such replacement Substitute Guarantee shall be from a
substitute guarantor which is approved by the Noteholders and on
terms which are substantially no less favourable to the Noteholders
than the terms of the Guarantee or Substitute Guarantee which it
replaces. Any replacement guarantee shall be constituted by a
supplemental deed in a form approved by the Issuer and the
Noteholders.
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