EXHIBIT 10.33
AMENDMENT NO. 9 TO ST. JOHN'S DREDGING
AND DEEP WATER PIER CONSTRUCTION AGREEMENT
This Amendment No. 9 dated as of April 28, 2000 (the "Debt Consolidation
Agreement") to the St. John's Dredging and Deep Water Pier Construction
Agreement dated April 3, 1987 by and between ANTIGUA and BARBUDA acting by and
through its government (hereinafter "Antigua") and ANTIGUA MASONRY PRODUCTS,
LIMITED, a corporation organized and existing under the laws of Antigua and
Barbuda and ANTIGUA HEAVY CONSTRUCTORS, LIMITED, a subsidiary of Antigua Masonry
Products, Limited (hereinafter Antigua Masonry Products, Limited and Antigua
Heavy Constructors, Limited, referred to collectively as "AMP"):
WHEREAS, Antigua desires to consolidate and restructure the terms of
the debt to AMP (as hereinafter defined), which debt resulted from the
work performed under the terms of the following agreements by and
between Antigua and AMP:
o The St. John's Dredging and Deep Water Pier Construction
Agreement dated April 3, 1987 which was amended as follows:
o Amendment No. 1 dated June 15, 1988
o Amendment No. 2 dated December 7, 1988
o Amendment No. 3 dated January 23, 1989
o Amendment No. 4 dated April 5, 1989
o Amendment No. 5 dated January 29, 1991
o Amendment No. 6 dated November 30, 1993
o Amendment No. 7 dated November 30, 1993
o Amendment No. 8 dated October 1, 1996
o 1989 Paving Agreement No. 1 effective January 23, 1989
o 1989 Paving Agreement No. 2 effective April 5, 1989
o 1993 Paving Agreement effective November 31, 1993
The above agreements are hereinafter referred to as the "Construction
Agreements".
WHEREAS, Antigua desires to consolidate the Debt into two promissory
notes and extend the repayment term and reduce the interest rate, and
WHEREAS, Antigua desires that AMP make a prepayment of US$2,500,000
against future income taxes and Customs Duties and Taxes due from AMP
and its subsidiaries, Antigua Heavy Constructors, Ltd., Antigua Cement,
Ltd., and Antigua Development and Construction, Ltd. (hereinafter the
"AMP Subsidiaries") which prepayment will be applied to reduce the
Debt, and
Amendment No. 9
Construction Agreement
WHEREAS, AMP desires that Antigua confirm certain specific sources of
funds and the security for debt repayment and assume certain debt due
AMP from Deep Bay Development Co., Ltd. (hereafter "Deep Bay") as a
direct obligation of Antigua, the payment of which has previously been
guaranteed by Antigua under the terms of the Construction Agreements,
and WHEREAS, the Construction Agreements provide that AMP and certain
subsidiaries of AMP have the right to set off amounts due to Antigua
against amounts due to AMP by Antigua, and
WHEREAS, AMP currently owes Antigua EC$2,767,582 (US$1,025,030) for
duties, consumption taxes and customs service tax ("Customs Duties and
Taxes") as of April 28, 2000, which Antigua and AMP desire to be offset
against the Debt in accordance with the Construction Agreements.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, Antigua and AMP agree as follows:
1. As of April 28, 2000, the total indebtedness (including accrued
interest) due to AMP from Antigua which is being consolidated under the
terms of this Agreement is US$35,966,295 (hereinafter, including all
interest accrued thereon the "Debt"). This includes the debt of Deep
Bay to AMP which Antigua hereby accepts as a direct obligation of
Antigua to pay AMP and AMP's accounts receivable from the Ministry of
Public Works. A detailed summary of the Debt, showing the projected
principal balance and interest accrued as of April 28, 2000 is
contained in Exhibit "A" to this Agreement.
2. Antigua hereby agrees to offset EC$2,767,582 due from AMP and the AMP
Subsidiaries for Customs Duties and Taxes as of April 28, 2000 against
the Debt. The Financial Secretary will issue a letter to AMP to this
effect at the closing of this Agreement.
3. AMP agrees to make a prepayment of US$2,500,000 against future income
taxes, duties and consumption taxes due from AMP and the AMP
Subsidiaries which prepayment will be applied to reduce the Debt. AMP
will file a monthly report with the Minister of Finance setting forth
the Customs Duties and Taxes and income taxes incurred by AMP, AHC and
ACL for the month and cumulative since the closing of this Agreement
and the balance of the US$2,500,000 prepayment.
4. The Debt, consisting of 39 unpaid promissory notes issued by Antigua, 3
unpaid promissory notes issued by Deep Bay Development Company, Ltd.
and Public Works accounts receivable will be restructured into two
promissory notes.
a) Dredging/Harbour Construction (the "Harbour Note").
Amendment No. 9
Construction Agreement
b) Road Work, Paving and Other Construction, including the
indebtedness of Deep Bay Development and Public Works accounts
receivable (the "Other Construction Note"). The amount of this
note to be determined after deducting the current debt of AMP
to Antigua for Customs Duties and Taxes, the US$2,500,000
prepayment and US$1,600,000 due from AMP to Antigua in
connection with the sale of condominiums under the terms of
the agreement between CorbKinnon Ltd. and Antigua.
The amounts of this debt to be determined immediately prior to the
closing of the Agreement.
5. The Harbour Note will have the following terms and conditions:
a) Principal amount of debt US$18,589,637.
b) Term of note - 15 years, three months.
c) Interest rate - 6% per annum.
d) Principal and interest payments as follows:
o US$312,500 per quarter on the first day of February,
May, August and October. Source of payment is rental
of property to the United States Department of
Defense (U.S. Air Force).
o US$50,000 per month payable on the first day of each
calendar month. Source of payment is Antigua's fuel
tax collections on deposit at the Swiss American
National Bank of Antigua. Antigua warrants that it
has issued or will issue by the 30th of April 2000,
an irrevocable letter to the Swiss American National
Bank of Antigua instructing the bank to make this
US$50,000 per month transfer on the first day of each
month, such letter to be substantially in the form
attached hereto as Exhibit "B". Antigua further
warrants that should Antigua elect to change the
depository bank for fuel tax collections to another
bank (the "Successor Bank"), then Antigua will issue
a similar irrevocable letter to the Successor Bank.
e) Such other terms as set forth in the form of note attached
hereto as Exhibit "C". If all payments are made on the due
dates the Harbour Note (US$18,589,637) will be retired in July
2015.
6. The Other Construction Note will have the following terms and
conditions:
a) Principal amount of debt:
o Debt amount US$17,376,658
Less: tax and duty prepayment (2,500,000)
Customs Duties and Taxes from
AMP, AHC and ACL (1,025,030)
Amount due Antigua re: CorbKinnon (1,600,000)
-------------
US$12,251,628
b) Term of note - 15 years.
c) Interest rate - 6% per annum.
d) Principal and interest payments as follows:
o US$43,000 per month payable on the first day of each
month. Source of payment is revenue due to Antigua
from its ownership interest in NewPort (Antigua) Ltd.
("NewPort"). Antigua warrants that it will issue by
the 30th of April 2000 an irrevocable letter to
NewPort instructing NewPort to transfer all dividend
payments due to Antigua to AMP bank accounts as
designated by AMP. Such letter to be substantially in
the form attached hereto as Exhibit "D".
o US$61,400 per month payable on the first day of each
month. Antigua warrants that it will issue by the 1st
of July 2000 an irrevocable letter to its depository
bank to make this $61,400 per month transfer on the
first day of each month beginning the 1st of August
2000, such letter to be substantially in the form
attached hereto as Exhibit "E". Antigua further
warrants that should Antigua elect to change its
depository bank to another bank (the "Successor
Bank"), then Antigua will issue a similar irrevocable
letter to the Successor Bank. Antigua further
warrants that adequate funds will be maintained in
its depository bank account to make the monthly
payments.
e) Such other terms as set forth in the form of note attached
hereto as Exhibit "F".
7. Antigua represents and warrants that all of its revenues set forth
below will be used by Antigua only for one purpose, to pay amounts due
on the Harbour Note immediately upon receipt of such revenues by
Antigua. Antigua grants AMP first priority security interest in all of
the following sources:
Amendment No. 9
Construction Agreement
a) US$312,500 per quarter revenues to Antigua to be received from
or paid by the United States Department of Defense (U.S. Air
Force) for rental of property in Antigua ("Air Force
Revenues").
b) US$50,000 to be transferred on the first business day of each
month from Antigua's fuel tax collections on deposit at the
Swiss American National Bank of Antigua to AMP's account at
the Bank of Nova Scotia (account number 1101-16) ("Fuel Tax
Payments").
c) All revenues due or paid to or received by Antigua from its
interest in NewPort (Antigua), Limited, including the proceeds
from any sale by Antigua of its ownership interest in NewPort
(Antigua) Limited ("NewPort Payments").
d) US$61,400 to be transferred on the first business day of each
month from its depository account to Antigua Heavy
Constructors, Ltd.'s account at the Bank of Nova Scotia
(account number 1101-16).
8. Antigua represents and warrants that all of its revenues set forth
below will be used by Antigua only for one purpose, to pay amounts due
on the Other Construction Note immediately upon receipt of such
revenues by Antigua. Antigua grants AMP first priority security
interest in the following source:
o All revenues due or paid to or received by Antigua
from its interest in CorbKinnon, Limited, including
any proceeds from any sale by Antigua of its
ownership interest in CorbKinnon, Limited
("CorbKinnon Payments").
9. Antigua hereby reconfirms that AMP's income from the Construction
Agreements and the related interest income from the Debt is exempt from
income tax.
10. Antigua agrees to obtain Cabinet approval by April 30, 2000 and to
undertake any other needed action and do whatever is constitutionally
necessary to give full effect to this Agreement.
11. The Closing of the transactions hereunder shall take place at the
Ministry of Finance on April 28, 2000. The following documents shall be
exchanged at the Closing:
a) AMP shall surrender the original unpaid 10% promissory notes
to Antigua.
b) Antigua shall issue the following to AMP:
o The Harbour Note and the Other Construction Note
executed by the Minister of Finance and witnessed by
the Financial Secretary.
Amendment No. 9
Construction Agreement
o A copy of Cabinet Minutes authorizing the debt
restructure.
o A copy of the irrevocable letter to Swiss American
National Bank as described in Exhibit "B" signed by
the Financial Secretary.
o A copy of the irrevocable letter to NewPort (Antigua)
Ltd. as described in Exhibit "D" signed by the
Financial Secretary.
o A copy of the irrevocable letter to Antigua's
depository bank as described in Exhibit "E" signed by
the Financial Secretary.
o A letter to AMP signed by the Financial Secretary
setting forth the amount of Customs Duties and Taxes
being offset against the Debt in determining the
amount of the Other Construction Note.
Amendment No. 9
Construction Agreement
IN WITNESS WHEREOF, the parties hereto, by and through their respective
undersigned signatories, have each executed and delivered this Agreement as of
this ____ day of ________________, 2000.
WITNESS: ANTIGUA AND BARBUDA, acting
through its government
/S/ XXXXXX XXXXXX By: /S/ XXXX ST. XXXX
-------------------------------- ------------------------------------
Xxxx X. St. Xxxx, Finance Minister
WITNESS: ANTIGUA HEAVY CONSTRUCTORS,
LIMITED, as assignee of ANTIGUA
MASONRY PRODUCTS, LIMITED
/S/XXXXXXX XXXXXXXXX By: /S/ XXXXXXX X. XXXXXXX
-------------------------------- ------------------------------------
Xxxxxxx X. Xxxxxxx, Director
WITNESS: ANTIGUA MASONRY PRODUCTS, LIMITED
/S/XXXXXXX XXXXXXXXX By: /S/ XXXXXXX X. XXXXXXX
-------------------------------- ------------------------------------
Xxxxxxx X. Xxxxxxx, Director
EXHIBITS
A. SUMMARY OF ANTIGUA DEBT
B. IRREVOCABLE LETTER TO BANK
(US$50,000 Per Month Transfer)
C. PROMISSORY NOTE (HARBOUR NOTE)
D IRREVOCABLE LETTER TO NEWPORT (ANTIGUA) LTD.
E. IRREVOCABLE LETTER TO BANK
(US$65,000 Per Month Transfer)
F. PROMISSORY NOTE (OTHER CONSTRUCTION NOTE)
EXHIBIT "A"
SUMMARY OF ANTIGUA DEBT
Antigua Masonry Products, Ltd. And Antigua Heavy Constructors, Ltd.
Summary of Amounts Due from the Government of Antigua
Balances as of April 28, 2000
04/28/00 04/28/00 04/28/00
Date of Principal Interest Total
Co. Description Note Balance Balance Balance
--- ----------- -------- ----------- ---------- -----------
AMP Dredging & Pier Construction Various $18,502,265 $ 87,372 $18,589,637
AMP Paving 1989 03/29/89 1,048,588 1,065,560 2,114,148
AMP Paving 1989 05/15/89 291,111 292,252 583,363
AMP Paving 1989 06/15/89 749,268 745,577 1,494,845
AMP Paving 1989 07/15/89 703,815 694,483 1,398,298
AMP Paving 1989 08/15/89 279,399 273,289 552,688
AMP Paving 1989 09/15/89 649,849 630,041 1,279,890
----------- ---------- -----------
Subtotal - 1989 Paving 3,722,030 3,701,202 7,423,232
=========== ========== ===========
AHC Paving 1993 06/15/94 4,600,960 2,452,567 7,053,527
AHC Deep Bay Development Co. 04/29/89 200,000 200,011 400,011
AHC Deep Bay Development Co. 04/29/89 128,000 128,551 256,551
AHC Deep Bay Development Co. 08/01/89 527,803 449,245 977,048
----------- ---------- -----------
Subtotal - Deep Bay Dev. 855,803 777,807 1,633,610
=========== ========== ===========
AMP Other Projects (1) 01/01/94 698,011 447,696 1,145,707
AMP Public Works Accounts (2) - 120,581 - 120,581
----------- ---------- -----------
Grand Totals at 4/28/00 $28,499,650 $7,466,645 $35,966,295
=========== ========== ===========
(1) Yasco Sports Complex $ 146,162
Bolans Bridge 72,500
High Point Oil Terminal Improv. 139,070
Concrete & Block for Road Improv. 340,279
-----------
Total $ 698,011
===========
(2) AMP Public Works Accounts:
PUB 101 $ 12,092
PUB 102 45,895
PUB 103 62,593
-----------
Total $ 120,581
===========
EXHIBIT "B"
IRREVOCABLE LETTER TO BANK
(US$50,000 Per Month Transfer)
Manager
-----------------------
Swiss American Bank
St. John's, Antigua
Dear Sir:
The Government of Antigua and Barbuda has executed Amendment No. 9 to the St.
John's Dredging and Deep Water Pier Construction Agreement. This amendment
provides that we issue you a standing order to transfer US$50,000 per month from
the Government's fuel tax revenue deposit account in your bank to Antigua Heavy
Constructors, Ltd.'s account in the Bank of Nova Scotia (Account number
1101-16). This transfer is currently being made and is to be continued on the
first (1st) business day of each month.
This letter is your standing instruction and is irrevocable without the written
consent of Antigua Heavy Constructors, Ltd. or until all promissory notes issued
to Antigua Heavy Constructors, Ltd. under the terms of the St. John's Dredging
and Deep Water Pier Construction Agreement as amended are paid in full.
Yours truly,
-----------------------
Xxxxxx Xxxxxx
Financial Secretary
-----------------------
Xxxxxxx Xxxxx
Accountant General
cc: Honourable Prime Minister
Honourable Finance Minister
Director of Audit
EXHIBIT "C"
PROMISSORY NOTE
(Harbour Note)
US$18,589,637.00 St. John's, Antigua
Date: April 28, 2000
FOR VALUE RECEIVED, the undersigned promises to pay to the order of Antigua
Heavy Constructors, Limited, an Antiguan corporation ("Payee"), at its offices
at X.X. Xxx 000, Xx. Xxxx'x Antigua, or at such other address as may be
specified in writing from time to time by the holder hereof, the principal
amount of Eighteen Million Five Hundred Eighty-Nine Thousand Six Hundred
Thirty-Seven Dollars and No Cents (US$18,589,637) payable together with interest
thereon in like lawful money from the date hereof at a rate per annum upon the
unpaid balance from time to time until maturity, same being payable, in lawful
money of the United States of America, at the applicable rate per annum set
forth below:
1. Payments and Maturity Date
Maker shall pay the interest and principal of this Note as follows:
US$312,500.00 shall be due and payable each quarter commencing on May
1, 2000 and continuing each successive quarter thereafter on each
August 1, November 1, February 1, and May 1 and $50,000 shall be due
and payable on the first day of each month commencing May 1, 2000; both
the quarterly and monthly payments to continue until the principal
balance is paid in full.
Maker shall pay all amounts owing under this Note when due in full and
in immediately available funds without setoff, counterclaim, deduction
or withholding for any reason whatsoever. If any payment falls due on a
day other than a day on which commercial banks in St. John's, Antigua,
are open for business (a "Business Day"), then such payment shall
instead be made on the next succeeding Business Day, and interest shall
accrue accordingly.
Maker shall utilize the sources of payment set forth in that certain
Amendment No. 9 to the St. John's Dredging and Deep Water Pier
Construction Agreement and all exhibits thereto by and between Maker,
Payee and Antigua Masonry Products, Limited ("Amendment No. 9") solely
for the purpose of making payments under this Note.
Harbour Note
Page #2
2. Interest Rate
This Note shall bear interest from the date of this Note until maturity
at the rate of 6% per annum and thereafter at the rate provided in Item
5.
3. Dredging and Deep Water Pier Construction Agreement
This Note is being issued pursuant to that certain Dredging and
Deepwater Pier Construction Agreement and all exhibits thereto between
Maker and Payee dated April 3, 1987 (the "Agreement") and all other
amendments thereto (the "Amendments"). This Note consolidates and
replaces the promissory notes listed in Exhibit A to this Promissory
Note. It is expressly understood and agreed that the terms of this Note
are subject to the terms of the Agreement and the Amendments. Terms
defined in the Agreement and the Amendments shall have the same meaning
when used herein. In the case of any conflict this Note shall prevail.
4. Events of Default
The unpaid balance of the Note, including principal and accrued
interest, shall at the option of Payee become immediately due and
payable upon the occurrence of any one or more of the following events
("Events of Default"), regardless of the cause thereof and whether
within or beyond the control of the Maker:
(a) The failure of Maker to pay any sum due under this Note within
60 days after notice to Maker that a payment has not been made
when due.
(b) If it shall become unlawful for Maker to make payment(s) under
this Note.
5. Default Rate of Interest
From and after the occurrence and during the continuation of any Event
of Default, regardless of whether Payee also elects to accelerate the
maturity of the Note, at Payee's sole option the unpaid balance of the
Note shall bear interest at 10% (the "Default Rate"); provided,
however, that after judgment all such sums shall bear interest at the
greater of the Default Rate or the rate prescribed by applicable law
for judgments. All interest which accrues at the Default Rate shall be
due and payable on Payee's demand from time to time.
Harbour Note
Page #3
6. Rights and Remedies of Payee
Payee shall be entitled to pursue any and all rights and remedies
provided by applicable law and/or under the terms of this Note, all of
which shall be cumulative and may be exercised successively or
concurrently. Payee's delay in exercising or failure to exercise any
rights or remedies to which Payee may be entitled if any Event of
Default occurs shall not constitute a waiver of any of Payee's rights
or remedies with respect to that or any subsequent Event of Default,
whether of the same or a different nature, nor shall any single or
partial exercise of any right or remedy by Payee preclude any other or
further exercise of that or any other right or remedy. No waiver of any
right or remedy by Payee shall be effective unless made in writing and
signed by Payee, nor shall any waiver on one occasion apply to any
future occasion, but shall be effective only with respect to the
specific occasion addressed in that signed writing.
7. Waiver and Consent
To the fullest extent permitted by law Maker hereby: (a) waives demand,
presentment, protest, notice of dishonor, suit against or joinder of
any other person, and all other requirements necessary to charge or
hold Maker liable with respect to the Note (except as otherwise
expressly set forth herein); (b) waives any right to interpose any
set-off or counterclaim or to plead any statute of limitations as a
defense in any such action or proceeding. No provision of this Note
shall limit Payee's right to serve legal process in any manner
permitted by law or to bring any such action or proceeding in any
competent jurisdiction. Until Payee receives all sums due under this
Note in immediately available funds, Maker shall not be released from
liability with respect to the Note unless Payee expressly releases
Maker in a writing signed by Payee.
8. Costs, Indemnities and Expenses
Maker agrees to pay all filing fees and similar charges and all costs
incurred by Payee in collection or securing or attempting to collect or
secure the Note, including reasonable attorney's fees, whether or not
involving arbitration, litigation and/or appellate or administrative
proceedings. Maker agrees to pay any documentary stamp taxes,
intangible taxes, withholding tax or other taxes which may now or
hereafter apply to any payment made in respect of the Note, and Maker
agrees to indemnify and hold Payee harmless from and against any
liability, reasonable costs, reasonable attorney's fees, penalties,
interest or expenses relating to any such taxes, as and when the same
may be incurred.
Harbour Note
Page #4
9. Maximum Interest Rate
In no event shall any agreed to or actual exaction charged, reserved or
taken as an advance or forbearance by Payee as consideration for the
Note exceed the limits (if any) imposed or provided by the law
applicable from time to time to the Note for the use or detention of
money or for forbearance in seeking its collection; Payee hereby waives
any right to demand such excess. In the event that the interest
provisions of this Note or any exactions provided for in this Note
shall result at any time or for any reason in an effective rate of
interest that transcends the maximum interest rate permitted by
applicable law (if any), then without further agreement or notice the
obligation to be fulfilled shall be automatically reduced to such limit
and all sums received by Payee in excess of those lawfully collectible
as interest shall be applied against the principal of the Note
immediately upon Payee's receipt thereof, with the same force and
effect as though the Maker had specifically designated such extra sums
to be applied to principal and Payee had agreed to accept such extra
payment(s) as a premium-free prepayment or prepayments. During any time
that the Note bears interest at the maximum lawful rate (whether by
application of this paragraph, the Default Rate provisions of this Note
or otherwise), interest shall be computed on the basis of the actual
number of days elapsed and a year of 360 days.
10. Governing Law
The Note shall be governed by, and construed and enforced in accordance
with, the laws of Antigua and Barbuda, W.I., as currently in effect and
subject to the principles of public international law. Antigua hereby
irrevocably and unconditionally waives any and all defenses it may have
based in whole or in part upon the doctrine of sovereign immunity.
11. Severability
Any provision of this Note which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction only, be ineffective only
to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or affecting the validity
or enforceability of such provision in any other jurisdiction.
12. Interpretation
The term "Payee" shall be deemed to include any subsequent holder(s) of
this Note. Whenever used in this Note, words in the singular include
the plural, words in the plural include the singular, and pronouns of
any gender include the other genders, all as may be appropriate.
Captions and paragraph headings in this Note are for convenience of
reference only and shall not affect its interpretation.
Harbour Note
Page #5
13. Miscellaneous
Time shall be of the essence with respect to the terms of this Note.
This Note cannot be changed or modified orally. This Note may be
prepaid in whole or in part at any time without penalty. Unless
otherwise provided in the Agreement, no prepayment need include imputed
interest not accrued through the date of prepayment, and no imputed
interest shall accrue thereafter on any amount prepaid. In furtherance
of the above, except as otherwise required by law or by the provisions
of this Note or designated by Payee, payments received by Payee
hereunder shall be applied first against interest accrued on the Note,
and next in reduction of the remaining balance of the Note, except that
during the continuance of any Event of Default Payee may apply such
payments in any order to priority determined by Payee in its exclusive
judgement. Except as otherwise required by the provisions of this Note
or designated by Payee, any notice required to be given to Maker shall
be deemed sufficient if made personally or if mailed, postage prepaid,
to Maker's address as it appears on the signature page of this Note (as
the same may hereinafter be changed by written notice to Payee from
Maker).
THIS NOTE IS SIGNED, SEALED, AND DELIVERED AS OF THE DATE FIRST WRITTEN ABOVE BY
AND THROUGH ITS SIGNATORY DULY AUTHORIZED.
MAKER
WITNESS ANTIGUA AND BARBUDA, ACTING
THROUGH ITS GOVERNMENT
/S/ XXXXXX XXXXXX By: /S/ XXXX ST. XXXX
-------------------------------- ------------------------------------
Xxxxxx Xxxxxx Honorable John St. Xxxx
Financial Secretary Minister of Finance
EXHIBIT "D"
IRREVOCABLE LETTER TO NEWPORT (ANTIGUA) LTD.
The Managing Director
NewPort (Antigua) Ltd.
St. John's, Antigua
Dear Sir:
The Government of Antigua and Barbuda has executed Amendment No. 9 to the St.
John's Dredging and Deep Water Pier Construction Agreement. This amendment
provides that we issue you a standing order to transfer all dividend payments
due to Antigua from NewPort (Antigua) Ltd. to Antigua Masonry Products, Ltd.
("AMP") bank accounts as designated by AMP. This transfer is currently being
made and is to be continued on the first (1st) business day of each month.
This letter is your standing instruction and is irrevocable without the written
consent of Antigua Heavy Constructors, Ltd. or until all promissory notes issued
to Antigua Heavy Constructors, Ltd. under the terms of the St. John's Dredging
and Deep Water Pier Construction Agreement as amended are paid in full.
Yours truly,
-----------------------
Xxxxxx Xxxxxx
Financial Secretary
-----------------------
Xxxxxxx Xxxxx
Accountant General
cc: Honourable Prime Minister
Honourable Finance Minister
Director of Audit
EXHIBIT "E"
IRREVOCABLE LETTER TO BANK
(US$61,400 Per Month Transfer)
Manager
---------------------------
Bank
---------------------------
St. John's, Antigua
Dear Sir:
The Government of Antigua and Barbuda has executed Amendment No. 9 to the St.
John's Dredging and Deep Water Pier Construction Agreement. This Agreement
provides that we issue you a standing order to transfer US$61,400 per month from
the Government's depository account in your bank to Antigua Heavy Constructors,
Ltd.'s account in the Bank of Nova Scotia (Account number 1101-16). This
transfer is to be made on the first (1st) business day of each month commencing
August 1, 2000.
This letter is your standing instruction and is irrevocable without the written
consent of Antigua Heavy Constructors, Ltd. or until all promissory notes issued
to Antigua heavy Constructors, Ltd. under the terms of the St. John's Dredging
and Deep Water Pier Construction Agreement as amended are paid in full.
Yours truly,
-----------------------
Xxxxxx Xxxxxx
Financial Secretary
-----------------------
Xxxxxxx Xxxxx
Accountant General
cc: Honourable Prime Minister
Honourable Finance Minister
Director of Audit
EXHIBIT "F"
PROMISSORY NOTE
(Other Construction Note)
US$12,251,628.00 St. John's, Antigua
Date: April 28, 2000
FOR VALUE RECEIVED, the undersigned promises to pay to the order of Antigua
Heavy Constructors, Limited, an Antiguan corporation ("Payee"), at its offices
at P. O. Box 423, St. John's Antigua, or at such other address as may be
specified in writing from time to time by the holder hereof, the principal
amount of Twelve Million Two Hundred Fifty One Thousand Six Hundred Twenty Eight
Dollars and No Cents (US$12,251,628.00) payable together with interest thereon
in like lawful money from the date hereof at a rate per annum upon the unpaid
balance from time to time until maturity, same being payable, in lawful money of
the United States of America, at the applicable rate per annum set forth below:
1. Payments and Maturity Date
Maker shall pay the interest and principal of this Note each month in
the amount of US$104,400 commencing on August 1, 2000 and continuing
until the principal balance is paid in full (the US$104,400 amount
consists of US$43,000 from NewPort Antigua and US$61,400 from the
government depository account).
Maker shall pay all amounts owing under this Note when due in full and
in immediately available funds without setoff, counterclaim, deduction
or withholding for any reason whatsoever. If any payment falls due on a
day other than a day on which commercial banks in St. John's, Antigua,
are open for business (a "Business Day"), then such payment shall
instead be made on the next succeeding Business Day, and interest shall
accrue accordingly.
Maker shall utilize the sources of payment set forth in that certain
Amendment No. 9 to the St. John's Dredging and Deep Water Pier
Construction Agreement and all exhibits thereto by and between Maker,
Payee and Antigua Masonry Products, Limited ("Amendment No. 9") solely
for the purpose of making payments under this Note.
Other Construction Note
Page #2
2. Interest Rate
This Note shall bear interest from the date of this Note until maturity
at the rate of 6% per annum and thereafter at the rate provided in Item
5.
3. Dredging and Deep Water Pier Cconstruction Agreement
This Note is being issued pursuant to that certain Dredging and
Deepwater Pier Construction Agreement and all exhibits thereto between
Maker and Payee dated April 3, 1987 (the "Agreement") and all other
amendments thereto (the "Amendments"). This Note consolidates and
replaces the promissory notes listed in Exhibit A to this Promissory
Note. It is expressly understood and agreed that the terms of this Note
are subject to the terms of the Agreement and the Amendments. Terms
defined in the Agreement and the Amendments shall have the same meaning
when used herein. In the case of any conflict this Note shall prevail.
4. Events of Default
The unpaid balance of the Note, including principal and accrued
interest, shall at the option of Payee become immediately due and
payable upon the occurrence of any one or more of the following events
("Events of Default"), regardless of the cause thereof and whether
within or beyond the control of the Maker:
(a) The failure of Maker to pay any sum due under this Note within
60 days after notice that a payment has not been made when
due.
(b) If it shall become unlawful for Maker to make payment(s) under
this Note.
5. Default Rate of Interest
From and after the occurrence and during the continuation of any Event
of Default, regardless of whether Payee also elects to accelerate the
maturity of the Note, at Payee's sole option the unpaid balance of the
Note shall bear interest at 10% (the "Default Rate"); provided,
however, that after judgment all such sums shall bear interest at the
greater of the Default Rate or the rate prescribed by applicable law
for judgments. All interest which accrues at the Default Rate shall be
due and payable on Payee's demand from time to time.
Other Construction Note
Page #3
6. Rights and Remedies of Payee
Payee shall be entitled to pursue any and all rights and remedies
provided by applicable law and/or under the terms of this Note, all of
which shall be cumulative and may be exercised successively or
concurrently. Payee's delay in exercising or failure to exercise any
rights or remedies to which Payee may be entitled if any Event of
Default occurs shall not constitute a waiver of any of Payee's rights
or remedies with respect to that or any subsequent Event of Default,
whether of the same or a different nature, nor shall any single or
partial exercise of any right or remedy by Payee preclude any other or
further exercise of that or any other right or remedy. No waiver of any
right or remedy by Payee shall be effective unless made in writing and
signed by Payee, nor shall any waiver on one occasion apply to any
future occasion, but shall be effective only with respect to the
specific occasion addressed in that signed writing.
7. Waiver and Consent
To the fullest extent permitted by law Maker hereby: (a) waives demand,
presentment, protest, notice of dishonor, suit against or joinder of
any other person, and all other requirements necessary to charge or
hold Maker liable with respect to the Note (except as otherwise
expressly set forth herein); (b) waives any right to interpose any
set-off or counterclaim or to plead any statute of limitations as a
defense in any such action or proceeding. No provision of this Note
shall limit Payee's right to serve legal process in any manner
permitted by law or to bring any such action or proceeding in any
competent jurisdiction. Until Payee receives all sums due under this
Note in immediately available funds, Maker shall not be released from
liability with respect to the Note unless Payee expressly releases
Maker in a writing signed by Payee.
8. Costs, Indemnities and Expenses
Maker agrees to pay all filing fees and similar charges and all costs
incurred by Payee in collection or securing or attempting to collect or
secure the Note, including reasonable attorney's fees, whether or not
involving arbitration, litigation and/or appellate or administrative
proceedings. Maker agrees to pay any documentary stamp taxes,
intangible taxes, withholding tax or other taxes which may now or
hereafter apply to any payment made in respect of the Note, and Maker
agrees to indemnify and hold Payee harmless from and against any
liability, reasonable costs, reasonable attorney's fees, penalties,
interest or expenses relating to any such taxes, as and when the same
may be incurred.
Other Construction Note
Page #4
9. Maximum Interest Rate
In no event shall any agreed to or actual exaction charged, reserved or
taken as an advance or forbearance by Payee as consideration for the
Note exceed the limits (if any) imposed or provided by the law
applicable from time to time to the Note for the use or detention of
money or for forbearance in seeking its collection; Payee hereby waives
any right to demand such excess. In the event that the interest
provisions of this Note or any exactions provided for in this Note
shall result at any time or for any reason in an effective rate of
interest that transcends the maximum interest rate permitted by
applicable law (if any), then without further agreement or notice the
obligation to be fulfilled shall be automatically reduced to such limit
and all sums received by Payee in excess of those lawfully collectible
as interest shall be applied against the principal of the Note
immediately upon Payee's receipt thereof, with the same force and
effect as though the Maker had specifically designated such extra sums
to be applied to principal and Payee had agreed to accept such extra
payment(s) as a premium-free prepayment or prepayments. During any time
that the Note bears interest at the maximum lawful rate (whether by
application of this paragraph, the Default Rate provisions of this Note
or otherwise), interest shall be computed on the basis of the actual
number of days elapsed and a year of 360 days.
10. Governing Law
The Note shall be governed by, and construed and enforced in accordance
with, the laws of Antigua and Barbuda, W.I., as currently in effect and
subject to the principles of public international law. Antigua hereby
irrevocably and unconditionally waives any and all defenses it may have
based in whole or in part upon the doctrine of sovereign immunity.
11. Severability
Any provision of this Note which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction only, be ineffective only
to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or affecting the validity
or enforceability of such provision in any other jurisdiction.
12. Interpretation
The term "Payee" shall be deemed to include any subsequent holder(s) of
this Note. Whenever used in this Note, words in the singular include
the plural, words in the plural include the singular, and pronouns of
any gender include the other genders, all as may be appropriate.
Captions and paragraph headings in this Note are for convenience of
reference only and shall not affect its interpretation.
Other Construction Note
Page #5
13. Miscellaneous
Time shall be of the essence with respect to the terms of this Note.
This Note cannot be changed or modified orally. This Note may be
prepaid in whole or in part at any time without penalty. Unless
otherwise provided in the Agreement, no prepayment need include imputed
interest not accrued through the date of prepayment, and no imputed
interest shall accrue thereafter on any amount prepaid. In furtherance
of the above, except as otherwise required by law or by the provisions
of this Note or designated by Payee, payments received by Payee
hereunder shall be applied first against interest accrued on the Note,
and next in reduction of the remaining balance of the Note, except that
during the continuance of any Event of Default Payee may apply such
payments in any order to priority determined by Payee in its exclusive
judgement. Except as otherwise required by the provisions of this Note
or designated by Payee, any notice required to be given to Maker shall
be deemed sufficient if made personally or if mailed, postage prepaid,
to Maker's address as it appears on the signature page of this Note (as
the same may hereinafter be changed by written notice to Payee from
Maker).
THIS NOTE IS SIGNED, SEALED, AND DELIVERED AS OF THE DATE FIRST WRITTEN ABOVE BY
AND THROUGH ITS SIGNATORY DULY AUTHORIZED.
MAKER
WITNESS ANTIGUA AND BARBUDA, ACTING
THROUGH ITS GOVERNMENT
/S/ XXXXXX XXXXXX By: /S/ XXXX ST. XXXX
-------------------------------- ------------------------------------
Xxxxxx Xxxxxx Honorable John St. Xxxx
Financial Secretary Minister of Finance
