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EXHIBIT 3
THIS INSTRUMENT is dated the 30th day of July, 1999 and made by
ANGOSTURA HOLDINGS LIMITED (registered in Trinidad and Tobago under number
A-719(c)) whose registered office is at Corner Eastern Main Road and Trinity
Avenue, Laventille and ANGOSTURA LIMITED (registered in Trinidad and Tobago
under number A-40(c)) whose registered office is at Corner Eastern Main Road and
Trinity Avenue, Laventille (the "Issuers").
WHEREAS
the Issuers have pursuant to their respective Articles of Continuance and by
resolutions of their respective Boards of Directors passed on the 9th day of
July, 1999 created US$9,500,000.00 Fixed Rate Unsecured Commercial Paper (the
"Notes") to be constituted by this Instrument
NOW THIS DEED witnesses and it is hereby declared as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Instrument, unless the context otherwise requires:
"BUSINESS DAY" means a day (other than a Saturday or Sunday) on which
banks are generally open for business in Trinidad and Tobago and New York.
"CERTIFICATE" means a certificate for Notes issued in accordance with
Clause 6 and in the form or substantially in the form set out in the Schedule.
"CHARGE OF SHARES" means a charge over the shares made by each of the
Issuers in favour of the Noteholders to secure the Secured Liabilities.
"DIRECTORS" means the Board of Directors of each of the Issuers for the
time being.
"DOLLARS" "US$" AND "$" mean the lawful currency of the United States
of America for the time being.
"EXTRAORDINARY RESOLUTION" means a resolution passed by a majority
consisting of not less than three-fourths of the Noteholders present and voting
upon a show of hands at a meeting of the Noteholders or if a poll is demanded
(by the Chairman of the meeting or by Noteholders holding not less than 10 per
cent of the nominal amount of Notes for the time being outstanding) by a
majority consisting of not less than 75 per cent of the votes given on such
poll.
"INTEREST PAYMENT DATE" has the meaning set out in Clause 3.
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"LIBOR" means the offered rate for US dollar deposits which appears on
the Reuters Screen LIBO Page at 11:00 a.m., New York time on the applicable
Interest Determination Date for six months. If more than one such rate appears,
the offered rate shall be the arithmetic average (rounded upward, if necessary,
to 1/16th of 1%) of such offered rates.
"NET WORTH" means total assets less total liabilities.
"NOTES" means the Fixed Rate Secured Commercial Paper of the Issuers
constituted by this Instrument is the aggregate principal amount not exceeding
US$9,500,000.00 or as the case may be the amount thereof for the time being
issued and outstanding.
"NOTEHOLDERS" means the several persons for the time being entered in
the Register as holders of the Notes.
"REGISTER" means the register of Noteholders kept by the Issuers
pursuant to Clause 9.
"REUTERS SCREEN LIBO PAGE" means the display of LIBOR of major banks
for interbank US dollar deposits designated as page "LIBO" on the Reuters
Monitor Money Rates Service (or such other page as may replace the LIBO page for
the purpose of displaying such LIBOR for interbank US dollar deposits).
"SECURED LIABILITIES" means all the moneys obligations and liabilities
whatsoever whether for principal interest or otherwise in whatever currency
which may now or at any time in the future be due or owing by the Issuers to the
Noteholders under the terms of this instrument or the Charge of Shares.
"SHARES" means the common stock held by the Issuers in the undertaking
called Xxxxxxxxx International, Inc. incorporated in accordance with the laws of
the State of Delaware United States of America with its principal place of
business situated at 222 Lakeview Avenue, Suite 1500, Xxxx Xxxx Xxxxx, Xxxxxxx,
00000, Xxxxxx Xxxxxx of America.
1.2 INTERPRETATION
(a) In this Instrument, unless otherwise expressly provided, any reference
to:
any statutory provision shall include a reference to such provision as
from time to time re-enacted amended extended or replaced;
a Clause or a Schedule is a reference to a clause of or a schedule to
this Instrument; and
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"redemption" includes purchase and repayment and the words "redeem" or
"redeemed" shall be construed accordingly.
(b) Save where the context otherwise requires, in this Instrument words
importing the singular number shall include the plural and vice
versa and words importing one gender shall include the other
gender.
(c) Headings in this Instrument are for ease of reference only and
shall not affect its interpretation.
(d) Save as expressly provided in this Instrument, words and
expressions defined in the Companies Xxx 0000 shall bear the same
respective meetings meanings in this Instrument.
2. AMOUNT AND STATUS OF NOTES
2.1 The principal amount of the Notes is limited to US$9,500,000.00. The Notes
shall be issued in denominations and integral multiples of $100,000.00 in
nominal amount, subject to and with the benefit of the provisions of this
Instrument. All the obligations and covenants contained in this Instrument shall
be binding on the Issuers and the Noteholders and all persons claiming through
them.
2.2 The Notes shall rank pari passu and shall be secured by the Charge of Shares
which the Issuers HERBY AGREES to issue and grant in favour of the Noteholders
within 45 days of the date hereof.
3 INTEREST
The Notes will carry interest at the rate of LIBOR plus three per cent per
annum. Such interest will accrue from day to day. Interest will be payable by
monthly installments in arrear on the 30th day of each month except that the
first payment of interest will be made on the 30th day of August, 1999 in
respect of the period from the date of the first issue of the Notes.
4 REDEMPTION OF NOTES
4.1 All Notes not previously redeemed or purchased by either of the Issuers
under any of the provisions of this Instrument will be repaid at par together
with accrued interest on 30th July, 1999 plus 180 days.
4.2 The Issuers shall be entitled, upon giving not less than 14 days' prior
notice in writing to the Noteholders, to redeem at any time at par the whole or
any part of the Notes for the time being outstanding and on the expiry of the
notice the Notes in respect of which it has been given shall be so redeemed. If
the Issuers shall redeem part only of the Notes, there shall be redeemed out of
the holding of each
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Noteholder that proportion (as near as may be without involving any fraction of
$1) of his holding of Notes which the total amount of the Notes then being
redeemed bears to the total amount of Notes then in issue.
4.3 Either of the Issuers may at any time purchase any Notes by tender
(available to all Noteholders alike) or by private treaty or otherwise at any
price agreed between the Noteholder and the Issuers.
4.4 As and when the Note or any part of the Notes are redeemed under the
provisions of the Instrument, the Issuers shall pay to the Noteholders the full
principal amount of the Notes to be repaid together with any accrued interest on
such Notes.
5 ACCELERATED REPAYMENT
5.1 The Notes shall become immediately repayable at par together with any
accrued interest (after deduction of tax).
(a) if either of the Issuers fails to repay the principal amount of the
Notes or any part of it or to pay any interest thereon within 14
days after the due date for such repayment; or
(b) if either of the Issuers ceases or threatens to cease to carry on
its business or a substantial part of its business; or
(c) if either of the Issuers is, or is adjudicated or found to be,
insolvent or stops or suspends payment of its debts or is (or is
deemed to be) unable to or admits inability to pay its debts as
they fall due or process or enters into any composition or other
arrangement for the benefit of its creditors generally or
proceedings are commenced in relation to the Issuers under any law
regulation or procedure relating to reconstruction or adjustment of
debts; or
(d) if any order is made by any competent court or any resolution is
passed by the either of the Issuers for the winding up or
dissolution or for the appointment of a liquidator of either of the
Issuers (except for the purpose of a solvent amalgamation or
reconstruction previously approved by the Extraordinary Resolution
of the Noteholders); or
(e) if an encumbrancer takes possession or a receiver or administrative
receiver or manager or sequestrator is appointed of the whole or
any part of the undertaking or assets of either of the Issuers or
distress or other process is levied or enforced upon any of the
assets rights or revenues of either of the Issuers and any such
action is not lifted or discharged within 14 days; or
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(f) if any order is made by any competent court for the appointment of
an administrator in relation to either of the Issuers; or
(g) if either of the Issuers makes default on any guarantee or
indemnity in respect of which it is liable and any steps are taken
to enforce the same; or
(h) if any other loan notes or any loan stock or other indebtedness
other than trade debts arising in the ordinary course of business
issued or owing by either of the Issuers becomes repayable before
its due date by reason of either of the Issuers' default or is not
paid when due; or
(i) if either of the Issuers advances loans to any subsidiary,
associate or affiliate; or
(j) if either of the Issuers purchases any assets from any subsidiary
or affiliate other than assets which are used by either of the
Issuers in the ordinary course of its business;
(k) if either of the Issuers allows the ratio of its total liabilities
divided by its Net Worth plus minority interests to exceed 0.62:1;
(l) if either of the Issuers allows its debt service ratio to fall
below 1:1.8;
(m) if either of the Issuers permits to subsist any encumbrance over
all or any part of its respective present or future undertaking
assets rights or revenues;
(n) if either of the Issuers incurs any indebtedness without consent of
the Noteholders such consent not to be unreasonably withheld;
(o) if either of the Issuers fails to execute in favour of the
Noteholders within 45 days of the date hereof a legal, valid,
binding and enforceable Charge of Shares; and
(p) if either of the Issuers acquires any business or shares of any
company other than businesses or companies involved in businesses
substantially similar to that of the Issuer.
5.2 The Issuers shall forthwith give notice to each Noteholder of the happening
of any event mentioned in clause 5.1 upon becoming aware of the same.
6 CERTIFICATES
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6.1 The Issuers shall issue duly executed Certificates for each of the Notes.
The Certificates shall be in the form or substantially in the form set out in
the Schedule and the provisions of this Instrument shall be attached to each of
the Certificates.
6.2 Each Noteholder or the joint holders of any of the Notes shall be entitled
without charge to one Certificate for the total amount of Notes registered in
his name or their names or, if he or they desire, to several such Certificates
each for a part (being US$100,000.00 in nominal value of the Notes or an
integral multiple thereof) of the Notes so registered for every Certificate
beyond the first. Any Certificate in the names of joint holders of any of the
Notes shall be delivered to the first named of such joint holders in the
Register unless all such joint holders otherwise specify in writing.
6.3 If any Certificate is defaced worn out lost or destroyed the Issuers shall
issue a new Certificate on such terms (if any) as the Directors may require as
to indemnity and evidence of defacement wearing out loss or destruction. In the
case of defacement or wearing out, the defaced or worn out Certificate shall be
surrendered and cancelled before the new Certificate is issued. In the case of
loss or destruction, the person availing himself of the provisions of this
Clause shall also pay to the Issuers (if demanded) all expenses incidental to
the investigation of evidence of loss or destruction and the preparation of any
form of indemnity. There shall be entered in the Register particulars of the
issue of any new Certificate and any indemnity.
7. SURRENDER AND CANCELLATION
7.1 Notes shall only be redeemed against surrender of the relevant
Certificate(s) for cancellation in the case of full redemption and for the
enfacement of a memorandum of the amount and date of redemption in the case of
partial redemption.
7.2 All Notes redeemed by the Issuers under the provisions of this Instrument
shall be cancelled and shall not be re-issued.
8 PLACE OF PAYMENT
The principal amount of the Notes or any part of the Notes and any accrued
interest will be payable at the registered office of the Issuers or at such
other place as the Issuers may from time to time appoint.
9 REGISTER OF NOTEHOLDERS
9.1 The Issuers shall at all times maintain a register at its registered office
or at such other place in Trinidad as it may from time to time decide in which
shall be entered the names and addresses of the holders for the time being of
the Notes
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together with the amounts of their respective holdings of Notes, the dates upon
which they were respectively registered as holders thereof, the serial number of
each Certificate issued and its date of issue.
9.2 Each Noteholder shall notify the Issuers of any change of his name or
address and the Issuers upon receiving such notification shall alter the
Register accordingly.
9.3 The Register shall at all times prescribed by law be open for inspection by
the Noteholders or any of them or in the case of a corporation by any person
authorised in writing by the Stockholder provided that the Register may be
closed by the Issuers for not more than thirty days in any one year and during
such period the Issuers shall be under no obligation to register transfers of
the Notes.
10 TITLE OF NOTEHOLDERS
10.1 The Issuers shall recognise the registered holder of any Notes as the sole
absolute owner thereof and as alone entitled to receive and give effectual
discharge for the monies comprised therein. The Issuers shall not be bound to
take notice or see to the execution of any trust whether express or implied or
constructive to which any Notes may be subject and shall not be affected by any
notice it may have whether express or constructive of the right title interest
or claim of any other persons to or in such Notes or monies.
10.2 If several persons are entered in the register as joint holders of any
Notes, the receipt of any one of such persons for any monies from time to time
payable in respect of such Notes shall be as effective a discharge to the
Issuers as if the person signing such receipt were the sole registered holder of
such Notes.
10.3 Every Noteholder shall be entitled to the principal amount of his Notes and
accrued interest (after deduction of tax) free from any equity set-off or
cross-claim on the part of the Issuers against the original or any intermediate
holder of the Notes.
10.4 The Issuers shall recognise the executors and administrators of a sole
registered holder of a Note as the only persons having any title or interest in
such Note on the death of such Noteholder. The Issuers shall recognise the
survivor or survivors of joint registered holders of a Note as the only person
or persons as having any title or interest in such Note on the death of one or
more of such joint registered holders.
11 TRANSFER OF NOTES
11.1 The Notes are transferable in nominal amounts and integral multiples of
US$100,000.00.
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11.2 A transfer of a Note must be by an instrument in writing which is signed by
or on behalf of the transferor. The transferor shall be deemed to remain the
owner of the Notes to be transferred until the name of the transferee is entered
in the Register in respect thereof.
11.3 Every instrument of transfer must be delivered to the registered office of
the Issuers or to such other place as the Issuers may appoint for registration
accompanied by the Certificate of the Notes to be transferred together with such
other evidence as the Directors or other officers of the Issuers authorised to
deal with the transfer may reasonably require to prove the title of the
transferor or his right to transfer the Notes.
11.4 The Issuers shall retain all instruments of transfer which are registered.
11.5 The Issuers shall not register the transfer of Notes in respect of which a
notice of redemption or repayment has been given.
12 TRANSMISSION OF NOTES
Any person entitled to a Note by reason of the death or bankruptcy of any
Noteholder or otherwise by operation of law may be registered as the holder
thereof upon such evidence of his title being produced as the Directors may
reasonably require. The Issuers may in its sole discretion retain any payments
on such a Note until the person entitled to be registered under this Clause has
been duly registered under the provisions of this Instrument.
13 ALTERATION OF THIS INSTRUMENT
The provisions of this Instrument and the conditions on which the Notes are held
may be altered abrogated or added to with the consent in writing of the Issuers
and an Extraordinary Resolution of Noteholders.
14 NOTICES
14.1 Any notice under or in respect of this Instrument shall be in writing but,
unless otherwise stated, may be made by telex, telecopier or letter providing
that a communication by telecopier is confirmed by letter posted on the same
day.
14.2 Any notice or demand for payment issued by any Noteholder hereunder shall
without prejudice to any other effective mode of making the same be deemed to
have been properly served on the Issuers if served on any one of the Directors
or on the Secretary of either of the Issuers or delivered or sent by letter post
telex or telecopier to the Issuers at its principal places of business. Any such
notice or demand sent by letter post shall be deemed to be served on the
addressee 96 hours after the time of posting notwithstanding that it be
undelivered or returned undelivered and in proving such service it shall be
sufficient to prove that the notice
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on demand was properly addressed and posted. Any notice or demand sent by telex
or telecopier on a business day shall be deemed to have been served at the time
of despatch.
14.3 Each such communication, if made to the Noteholder by the Issuers, shall be
signed and despatched by an authorised officer of either of the Issuers.
15 LAW
This Instrument shall be governed by and construed in accordance with the laws
of Trinidad and Tobago.
IN WITNESS whereof this Instrument has been executed and delivered as a deed on
the date first above written.
THE COMMON SEAL OF ANGOSTURA HOLDINGS LIMITED was hereto affixed by order and
authority of the Board of Directors and in conformity with the Bye-Laws of the
Company in the presence of the undermentioned witness:
Signature /s/ Xxxx Xxxxxxxxx
Name Xxxx Xxxxxxxxx
Occupation Bank Officer
Address 00 Xxxxxxx Xx. Xxxx
Xxxxxxx Xxxx
THE COMMON SEAL OF ANGOSTURA LIMITED was hereto affixed by order and authority
of the Board of Directors and in conformity with the Bye-Laws of the Company in
the presence of the undermentioned witness
Signature /s/ Xxxx Xxxxxxxxx
Name Xxxx Xxxxxxxxx
Occupation Bank Officer
Address 00 Xxxxxxx Xx. Xxxx
Xxxxxxx Xxxx
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SCHEDULE
FORM OF COMMERCIAL PAPER CERTIFICATE
Angostura Holdings Limited
Angostura Limited
Certificate Nominal Amount of Commercial Paper
No [_____________] US$ [________________]
ISSUE of [____________] per cent Secured Commercial Paper
Created and issued pursuant to each of the Issuers' Articles of
Continuance and Bye-Laws and a Resolution of its respective Board of
Directors passed on the 9th day of July, 1999.
IT IS TO CERTIFY that [name of Noteholder] of [address] is/are the registered
holders(s) of [________________] dollars of the Fixed Rate Secured Commercial
Paper ('Notes') which Notes are constituted by an Instrument entered into by the
Issuers on and dated [_______________] and are issued subject to the provisions
contained in that Instrument. Payment of the Notes is also secured by a Charge
of Shares.
Interest is payable at the rate of Libor Per 6 month period plus 3% by monthly
installments in arrear on the _________ day of ______________, each month.
The Notes are transferable only in nominal amounts and integral multiples of
US$[100,000.00] No transfer of any part of the Notes represented by this
Certificate will be registered unless accompanied by this Certificate. The Notes
are redeemable in accordance with the terms and conditions contained in the
Instrument [a copy of which is attached to this Certificate].
Given under the Common Seal of each of the Issuers.
this day of
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Director
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Secretary
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