1
EXHIBIT 1
THIS INSTRUMENT is dated
and made by
ANGOSTURA HOLDINGS LIMITED (registered in Trinidad and Tobago under number
A-719(c)) whose registered office is at Xxxxxx Xxxxxxx Xxxx Xxxx xxx Xxxxxxx
Xxxxxx. Laventille and ANGOSTURA LIMITED (registered in Trinidad and Tobago
under number A-40(c)) whose registered office is at Xxxxxx Xxxxxxx Xxxx Xxxx
xxx Xxxxxxx Xxxxxx. Laventille (the 'Issuers').
WHEREAS
the Issuers have pursuant to their respective Articles of Continuance and by
resolutions of their respective Board of Directors passed on the 9th day of
July, 1999 created US$7,000,000.00 Fixed Rate Unsecured Commercial Paper
('Notes') to be constituted by this Instrument.
NOW THIS DEED witnesses and it is hereby declared as follows:
1 DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Instrument, unless the context otherwise requires:
'Business Day' means a day (other than a Saturday or Sunday) on which banks
are generally open for business in Trinidad and Tobago and New York.
'Certificate' means a certificate for Notes issued in accordance with
Clause 6 and in the form or substantially in the form set out in the
Schedule.
'Directors' means the Board of Directors of each of the Issuers for the
time being.
'Dollars' 'US$' 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 the 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.
3
--------------------------------------------------------------------------------
MHS & CO - COMMERCIAL INSTRUMENT JULY 1999
CITIBANK/ANGOSTURA LIMITED EXECUTION COPY
2
'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 US$7,000,000.00 Fixed Rate Unsecured Commercial Paper of
the Issuers constituted by this Instrument 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 the 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).
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
'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) Heading 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
meanings in this Instrument.
--------------------------------------------------------------------------------
MHS & CO - COMMERCIAL INSTRUMENT JULY 1999
CITIBANK/ANGOSTURA LIMITED EXECUTION COPY
3
2. AMOUNT AND STATUS OF NOTES
2.1 The principal amount of the Notes is limited to US$7,000,000.00. 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 as unsecured obligations of the Issuers.
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 instalments in arrear on the 19th day in each month except that the
first payment of interest will be made on the 19th day of August 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 19th August, 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 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 Notes or any part of the Notes are redeemed under the
provisions of this 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).
________________________________________________________________________________
MHS & CO -- COMMERCIAL INSTRUMENT JULY 1999
CITIBANK/ANGOSTURA LIMITED EXECUTION COPY
4
(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 payment; 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 proposes 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
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
(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 become repayable before its due date by reason of
either of the Issuers's 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;
6
----------------------------------------------------------------------------
MHS & CO - COMMERCIAL INSTRUMENT JULY 1999
CITIBANK/ANGOSTURA LIMITED EXECUTION COPY
5
(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; and
(o) 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 respective 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
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 Company (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.
7
--------------------------------------------------------------------------------
MHS & CO - COMMERCIAL INSTRUMENT JULY 1999
CITIBANK/ANGOSTURA LIMITED EXECUTION COPY
6
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 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 Company 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.
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 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 person 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.
8
----------------------------------------------------------------------------
MHS & CO - COMMERCIAL INSTRUMENT JULY 1999
CITIBANK/ANGOSTURA LIMITED EXECUTION COPY
7
11 TRANSFER OF NOTES
11.1 The Notes are transferable in nominal amounts and integral multiples of
US$100,000.00.
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 authorized 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 their 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
addresses 96 hours after the time of posting
_______________________________________________________________________________
MMS & CO -- COMMERCIAL INSTRUMENT JULY 1999
CITIBANK/ANGOSTURA LIMITED EXECUTION COPY
8
notwithstanding that it be undelivered or returned undelivered and in proving
such service it shall be sufficient to prove that the notice or demand was
properly addressed and posted. Any notice of demand sent by telex or telecopier
on a business day shall be deemed to have been served at the time of dispatch.
14.3 Each such communication, if made to the Noteholder by the Issuers, shall
be signed and dispatched 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 27 Regents Xx. Xxxx
--------------------
Regents Park
--------------------
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 27 Regents Xx. Xxxx
--------------------
Regents Park
-------------------- 10
--------------------------------------------------------------------------------
MHS& CO - COMMERCIAL INSTRUMENT JULY 1999
CITIBANK/ANGOSTURA LIMITED EXECUTION COPY
9
SCHEDULE
FORM OF COMMERCIAL PAPER CERTIFICATE
Angostura Holdings Limited
Angostura Limited
Certificate Nominal Amount of Commercial Paper
No [________] US$[________]
ISSUE of 8.6 per cent Unsecured 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 9th day of July, 1999
THIS IS TO CERTIFY that [name of Noteholder] of [address] is/are the registered
holder(s) of [________] dollars of the Fixed Rate Unsecured 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.
Interest is payable at the rate of Libor Per 6 month period plus 3% by monthly
instalments in arrear on the 19th day of each month, commencing on the 19th day
of August, 1999.
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
____________________
Director
____________________
Secretary
____________________
Director
____________________
Secretary
