..........................................................
Attorney-at-Law of
Lex Caribbean Law
Offices
Worthing Corporate
Centre
Worthing, Christ Church
BARBADOS
THIS THIRD
AMENDED AND RESTATED LOAN AGREEMENT is made the ________
day of June, 2008.
BETWEEN:-
BNB FINANCE
& TRUST CORPORATION a
former-Act Company continued under the provisions of the Companies
Act, Cap. 308 of the Laws of Barbados in the name of Barbados
National Bank Limited as Company No. 1588 which by virtue of a
resolution dated
the day
of changed
its name as aforesaid and having its Registered Office situate at
Number 1 Broad Street in the City of Bridgetown in the Island
of Barbados (hereinafter referred to as “BNB FTC”) of
the FIRST PART
BARBADOS
NATIONAL BANK INC. an
amalgamated company incorporated under the provisions of the
Companies Act Chapter 308 of the Laws of Barbados as Company Number
26464 by virtue of a Certificate of Amalgamation issued by the
Registrar of Companies on December 28, 2005 and having its
registered office situate at Independence Square in the City of
Bridgetown in the Island of Barbados (hereinafter referred to as
“BNB”) of the SECOND PART
APES HILL
DEVELOPMENT SRL a society
with restricted liability formed under the laws of Barbados and
having its registered office situate at Worthing Corporate
Centre,
Worthing in the
parish of Christ Church in the Island of Barbados (hereinafter
referred to as “the Borrower”) of the THIRD
PART
C.O.
WILLIAMS CONSTRUCTION LIMITED an amalgamated company registered in Barbados
under the provisions of the Companies Act Chapter 308 of the Laws
of Barbados as Company No. 15619 and having its registered office
situate at Worthing Corporate Centre, Worthing Main Road in the
parish of Christ Church in the Island of Barbados (which was
formerly Dixie Farms Limited an amalgamated company registered
under the provisions of the said Companies Act also as Company No.
3971 being itself an amalgamation of C. O Williams Construction
Limited (Company No: 445), Dixie Farms Limited (Company No: 447),
Spring Estates Limited (Company No: 448 and Warrens Farms Limited
(Company No: 638) all companies incorporated under the provisions
of the said Companies Act) and which was later amalgamated with
Caribbean Farm Produce Inc. (Company No: 7669) and is now known as
C. O Williams Construction Limited (hereinafter referred
to as “C.O. Williams”) of the FOURTH
PART
AND
LANDMARK
LAND COMPANY INC. a
Delaware corporation having its principal office situate at 2817
Crain Highway, Upper Marlboro, Maryland 20774 (hereinafter referred
to “Landmark”) of the FIFTH PART
(C.O.Williams
and Landmark are hereinafter together referred to as the
“Project Sponsors”).
WHEREAS:-
(1) The
Borrower intends to develop the Land (as that term is hereinafter
defined) and to construct on the Land a hotel, golf course, club
house, recreational facilities and a residential
development;
(2) The
Borrower has purchased the Godings Bay (BVI) Limited Shares (as
hereinafter defined), the Cobblers (BVI) Limited Shares (as
hereinafter defined) and the real property containing 1,557.6
square metres or thereabouts and situate at Queen Street in the
parish of Saint Peter in Barbados more particularly described in
the Fourth Schedule hereto (“the Queen Street
Land”)
(3) Godings
Bay (BVI) Limited and Cobblers (Barbados) Limited are the owners
of the Other Queen Street Lands (as hereinafter defined)
(the “Queen Street Land” and “the Other Queen
Street Lands” are hereinafter together referred to as
“the Beachfront Land”) which the Borrower intends to
develop;
(4) BNB
has agreed to make available to the Borrower at the request of the
Borrower loan facilities up to a maximum amount of Sixty Million
Seven Hundred Thousand US Dollars (US$60,700,000.00) to be
disbursed in US Dollars and Barbados Dollars for the purpose of
assisting with the financing of the said development of the Land,
including the construction of villas on Parcel B of the Land, with
the financing of the purchase of the Shares (as that term is
hereinafter defined) and the Queen Street Land and with the Initial
Development of the Beachfront Land in the manner and subject to the
terms and conditions of this Agreement.
(5) The
Borrower has agreed to secure the payment of the Loan (as that term
is hereinafter defined) and the interest thereon by the security
hereinafter described.
NOW THIS
AGREEMENT WITNESSETH that
in consideration of the mutual covenants and agreements herein
contained, the parties agree as follows.
1. INTERPRETATION
1.1 In
this Agreement, including the foregoing recitals and the exhibits,
except as otherwise provided herein or unless the context otherwise
clearly requires, the following principles of construction shall
apply:-
(a) References
to articles, clauses, sub-clauses, paragraphs, schedules and
exhibits are to the articles, clauses, sub-clauses, paragraphs,
schedules and exhibits to this Agreement unless otherwise
stated;
(b) Clause
headings are inserted for ease of reference only and are not to
affect the interpretation of any provisions of this
Agreement;
(c) Except
to the extent the context otherwise requires any references in this
document to this Agreement and any other document referred to in it
includes any document expressed to be supplemental to or collateral
with or which is entered into pursuant to or in accordance herewith
or therewith and shall be deemed to include any instruments
amending varying supplementing modifying or replacing the terms of
any such documents from time to time;
(d) References
to any person are to be construed to include corporations, firms,
companies, partnerships, individuals, associations, transferees,
assigns or successors in title in accordance with their respective
interests;
(e) The words
“other” and “otherwise” are not to be
construed ejusdem generis with any foregoing words where a wider
construction is possible;
(f) The words
“including” and “in particular” are to be
construed as being by way of illustration or emphasis only and are
not to be construed as nor shall they take effect as limiting the
generality of any foregoing words;
(g) Words
in the singular shall include the plural and vice versa and the use
of any gender shall be applicable to all genders;
(h) References to any
statutory provision shall be construed as references to those
provisions as amended or re-enacted or as their application is
modified by other provisions (whether before or after the date
hereof) from time to time and shall include references to any
provisions of which they are re-enactments (whether with or without
modification).
2. DEFINITIONS
“Advance” means the advance of the
Loan or part thereof and “Advances” shall be construed
accordingly.
“Applicable Law” means in respect of
any person, property, transaction or event, all applicable laws,
standards, requirements, policies, approvals, notices issued by any
Governmental Authority, statutes, ordinances, guidelines, treaties
and regulations, and all applicable directives, orders, permits,
judgments, injunctions, awards and decrees of any Governmental
Authority whether or not having the force of law including, without
limitation, environmental laws.
“Articles
of Organisation” mean the Articles of Organisation of the
Borrower from time to time in effect.
“Association” means the non-profit
company to be established by the Borrower for the purpose generally
of owning and maintaining the Common Areas and generally having
responsibility for the amenities and welfare of the owners and
residents of the Lots.
“Barbados
Dollars” or “BDS$” means the lawful currency of
Barbados.
“Beachfront Land” means the Queen
Street Land and the Other Queen Street Lands together.
“Business
Day” means any day excluding Saturday, Sunday or any days
which shall be in Barbados a legal holiday or a day on which
banking institutions in Barbados are authorized by law to
close.
“By-Laws” means the by-laws of the
Borrower from time to time in effect.
“Chief
Town Planner” means the Chief Town Planner of
Barbados.
“Certificate of Compliance” means
the certificate issued by the Chief Town Planner indicating that
the conditions attached to the permission of the Chief Town Planner
for the subdivision and development of the Land have been satisfied
and that he has no objection to the sale or disposal of the
Lots.
“Club” means the Apes Hill golf
club.
“Club
Facilities” mean the golf and recreational facilities
provided by the Club for the use of its members.
“Club
Rules and Regulations” mean the rules and regulations from
time to time promulgated by the Club to be followed by the members
of the Club when using the Club Facilities.
“Cobblers
(BVI) Limited Shares” means the 50,000 shares issued by
Cobblers (BVI) Limited, being all of the issued and outstanding
shares in the capital of Cobblers (BVI) Limited.
“Cobblers
(Barbados) Limited Shares” means the 200 Class A Common
Shares and the 100 Class B Common Shares issued by Cobblers
(Barbados) Limited, being all of the issued and outstanding shares
in the capital of Cobblers (Barbados) Limited.
“Common
Areas” means those areas of the Development, not being Lots,
set aside for the common enjoyment, convenience and the security of
all owners and residents including the community entrances, access
roads and road reserves, certain landscape and open space areas,
gullies, watercourse and the property perimeter, including security
fencing and maintenance access.
“Conditions Precedent for the First
Tranche” means the conditions set out in Part A of the First
Schedule hereto which must be satisfied by the Borrower prior to
disbursement of the First Tranche or any part thereof.
“Conditions Precedent for the Second
Tranche” means the conditions set out in Part B of the First
Schedule hereto which must be satisfied by the Borrower prior to
disbursement of the Second Tranche or any part thereof.
“Conditions Precedent for the Third
Tranche” means the conditions set out in Part C of the First
Schedule hereto which must be satisfied by the Borrower prior to
disbursement of the Third Tranche or any part thereof.
“Conditions Precedent for the Fourth
Tranche” means the conditions set out in Part D of the First
Schedule hereto which must be satisfied by the Borrower prior to
disbursement of the Fourth Tranche or any part thereof.
“Construction Contracts” means the
contracts listed in the Third Schedule hereto and any other
contracts entered into by the Borrower for the construction of the
Development.
“Construction Schedule” means the
schedule specifying the anticipated completion dates of the various
phases of the Project that is prepared by the Borrower and approved
by BNB FTC or BNB from time to time.
“Contractor” means any contractor
who is employed by the Borrower and approved by BNB FTC or BNB with
responsibility for carrying out construction works on the various
phases of the Project.
“Contractor’s Performance
Bond” means in respect of any Contractor the performance bond
issued by such Contractor in favour of the Borrower in an amount
not less than 10% of the value of the relevant Construction Contact
made between such Contractor and the Borrower.
“Contractual Obligations” means, as
to any person, any provision of any security issued by it or of any
agreement, instrument or undertaking to which such person is a
party or by which any of its property is bound.
“C.O.
Williams Charge over Quotas” means the charge over the quotas
issued by the Borrower to C.O. Williams Investments Inc.
“Default” means any event, act or
condition which with the giving of notice or lapse of time or both,
would constitute an Event of Default hereunder.
“Default
Rate” means, in the event of any Default the interest rate
which will thereafter be applied to the outstanding principal
balance of the Loan as hereinafter provided, being as
follows:-
(a) for
any Advance made in Barbados Dollars, the Barbados National Bank
prime lending rate plus 3%.
(b) for
any Advance made in US Dollars, US 3 months LIBOR plus
7%.
“Development” means the development
known as Apes Hill Club Development which consists of a golf course
and Golf Structures, Lots, roads, waterworks and other
infrastructural facilities, villas, a spa, hotel units and hotel
facilities, including pool and restaurant, tennis courts and all
and any other building, erections and structures
thereon.
“Escrow
Agreement” means the agreement dated the 28
th day of December 2005 made between BNB and the
Borrower.
“Estimated Completion Costs” means
the Project Costs which, in the reasonable estimate of the Quantity
Surveyor will be required from time to time to complete the Project
in accordance with the Plans and Specifications including, but
without limitation, (i) any Project Costs previously certified by
the Borrower to BNB FTC or BNB which remain unpaid and (ii) all
interest accrued and to accrue on the Advances.
“Event of
Default” has the meaning specified in Clause 11
hereto.
“First
Phase” means the period commencing on the 28
th day of December, 2005 and ending on the date on
which the First Tranche has been entirely utilized.
“First
Tranche” means the sum of not more than Sixteen Million Eight
Hundred Thousand US Dollars (US$16,800,000) to be disbursed partly
in US Dollars and partly in Barbados Dollars, being part of the
Loan that will be used by the Borrower to construct a golf course
and Golf Structures, for Master Site Improvements, for Initial Lot
Development, to perform marketing and to acquire working
capital.
“Fourth
Tranche” means the sum of not more than Nine Million US
Dollars (US$9,000,000) to be disbursed partly in US Dollars and
partly in Barbados Dollars, being part of the Loan that will be
used by the Borrower for the construction of villas on Parcel B of
the Land.
“GAAP” means generally accepted
accounting principles as in effect from time to time.
“Godings
Bay (BVI) Limited Shares” means the 50,000 shares issued by
Godings Bay (BVI) Limited, being all of the issued and outstanding
shares in the capital of Godings Bay (BVI) Limited.
“Golf
Structures” means the club house, maintenance sheds and all
support structures and fixtures for the operation of a golf course
to be constructed on the Land.
“Governmental Authority” means any
nation or government, any state or other political subdivision
thereof and any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to
government.
“Initial
Development of the Beachfront Land” means those architectural
drawings, Environmental Impact Assessments, planning permissions,
marketing plan costs, and other costs associated with the initial
planning stages of the development of the Beachfront
Land.
“Initial
Lot Development” means the construction of roads and the
installing of utilities to facilitate the transfer of Lots to
purchasers and the landscaping of Common Areas.
“Land” means the land more
particularly described in the Second Schedule hereto.
“Land
Plan” means the plan certified on the 30
th day of March, 2007 by Gregory St.C Hutchinson,
Land Surveyor and the plan certified on the 2
nd day of July, 2007 by Gregory St.C Hutchinson,
Land Surveyor and/or such other plan or plans, in form and
substance satisfactory to BNB FTC and BNB, showing, to the extent
available from time to time, the boundaries of the Land, the
delineation of the Lots, all roads on the Land and adjoining the
Land (including their names and widths), the location of all line
marks between the Lots and between the Land and each adjoining
property or street, all existing and proposed improvements to be
constructed on the Land, all existing and proposed parking spaces
and such other information relating to the physical and
geographical characteristics of the Project as may be required by
BNB FTC or BNB.
“Landmark
Charge over Quotas” means the charge over the quotas issued
by the Borrower to LML Caribbean Limited.
“LIBOR” for any Advance means the 3
month rate, as published by Bloomberg, at which deposits in US
Dollars are offered in the London inter-bank market as of
approximately 11.00 o’clock a.m., London time, two Business
Days before the date such Advance is disbursed and subsequently two
Business Days before each date the interest rate on such Advance is
adjusted in accordance with Clause 4.1(b). If LIBOR is
no longer published as stated above, LIBOR shall mean such other
comparable rate as is reasonably determined by BNB FTC or
BNB.
“Lien” means any mortgage, charge,
pledge, hypothecation, lien (statutory or otherwise), security
interest or other encumbrance of any nature however arising, or any
other security agreement or arrangement creating in favour of any
creditor.
“Loan” means the aggregate facility
of up to Sixty Million Seven Hundred Thousand US Dollars as
hereinafter defined (US$60,700,000.00) to be disbursed in US
Dollars and Barbados Dollars to be drawn down by the Advances made
hereunder and where the context admits each such Advance
severally.
“Lots” means those residential lots
as shown on the Land Plan into which the Land is to be subdivided
in accordance with the Land Plan and pursuant to the permission of
the Chief Town Planner for the purpose of sale.
“Master
Site Improvements” means construction of infrastructure on
the Land including, but not limited to, water supply and storage,
utilities, roads, entry and central hard and soft
landscaping.
“Material
Adverse Change” means, in respect of any Person, any change
which has the effect of materially adversely impacting:-
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its ability to
perform any of its obligations under this Agreement or any
documents relating to the Security;
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its financial
condition or the condition of any of its assets (including real
estate), its revenues, business or prospects;
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the value of
all or any part of its assets (including real estate), revenue or
business which forms part of or are being utilized in connection
with the Project;
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the value of
all or any part of its assets (including real estate),
revenue or business over which Security has been granted in favour
of BNB;
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the ability of
BNBFTC and BNB to exercise or enforce their rights and remedies
under this Agreement, including the ability to enforce any
Security.
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“Members’ Agreement” means the
agreement dated the ____ day of December, 2005 made
between C.O. Williams Investments Inc. and LML Caribbean
Limited.
“Officers’ Certificate” means
a certificate in a form satisfactory to BNB FTC signed by a manager
of the Borrower or by such other of the Borrower’s officers
as may be acceptable to BNB FTC.
“Other
Queen Street Lands” means the lands more particularly
described in the Fifth Schedule hereto.
“Parcel” means any parcel of land
forming part of the Land and marked as a parcel on the Land
Plan.
“Permitted Liens” shall mean, at any
time, the following:-
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such mortgages,
debentures and charges as may be entered into by the Borrower after
the date of this Agreement which do not create a charge over the
assets to be secured by the Security;
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Liens for taxes
not yet due or which are being contested if adequate reserves with
respect thereto are maintained on the books of the Borrower in
accordance with GAAP, as long as the same does not involve any
danger of the sale, forfeiture or loss of property that is subject
to the Lien of the Security or of any interest therein;
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undetermined or
inchoate Liens arising in the ordinary course
of business of the Borrower, or a claim for which has
not been filed or registered pursuant to law or of which notice
shall not have been given or become known to the Borrower or BNB
FTC or BNB;
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carriers’, warehousemen’s,
mechanics’, materialmen’s, repairmen’s or other
similar Liens arising in the ordinary course of business which are
not overdue for a period of more than thirty days or which are
being contested;
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easements,
rights of way, restrictions and other similar encumbrances incurred
in the ordinary course of business which, in the aggregate, are not
substantial in amount, and which do not in any case materially
detract from the value of the property subject thereto or
interference with the ordinary conduct of the business of the
Borrower;
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statutory Liens
incurred or deposits made in the ordinary course of business of the
Borrower in connection with workers’ compensation,
unemployment insurance and other social security
legislation;
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the
reservations and expectations contained in, or implied by statute
in, an original disposition from the Crown and grants made by the
Crown of interests so reserved or expected;
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any Lien,
payment of which has been provided for by the deposit with BNB of
an amount in cash, or the obtaining of a surety bond satisfactory
to BNB FTC and BNB, sufficient in either case to pay or discharge
the same and which deposit or bond BNB FTC and BNB are
authorized to use or draw on for that purpose.
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“Person” includes an individual, a
partnership, a society, a body corporate, a corporation, a trust,
an unincorporated organization, a joint venture or a government or
any department or agency or political subdivision
thereof.
“Plans
and Specifications” means the detailed plans and
specifications for the Project including, without limitation, all
related architectural drawings, plot plans and elevations, working
drawings and change orders, that are prepared by or on behalf of
the Borrower.
“Project” means the development of
Lots; the construction of villas on the Lots; the installation of
roads, waterworks and other infrastructural facilities; the
construction of a golf course on the Land; and the building of the
Golf Structures and all fixtures, furnishings, chattels and
equipment incidental thereto or necessary for the operation
thereof, considered as a whole, but does not include any further
development or construction to be done on the Land.
“Project
Budget” means the detailed budget of all Project Costs as
hereinafter defined that is prepared by the Borrower from time to
time and approved by BNB FTC.
“Project
Contracts” means all easements, licences, permits, contracts,
subcontracts, building and development permissions, agreements,
plans and working drawings now or hereafter entered into or
obtained by or on behalf of the Borrower in connection with the
Project including, without limitation, the Plans and Specifications
and the Land Plan.
“Project
Costs” means, without duplication, all costs actually
incurred or to be incurred by the Borrower in connection with the
completion of the Project provided that such costs are of a nature
contemplated by the Project Budget and the Plans and Specifications
or have been agreed to in writing by BNB FTC and provided further
that such costs shall not include any repayments of borrowed money
by the Borrower or any interest in respect of borrowed money paid
by the Borrower to any person other than BNB or BNB FTC and
provided further than such costs do not exceed the respective
amounts specified in the Project Budget which project costs are
estimated in the aggregate at US$60,717,755.00.
“Project
Documents” means the Rules of the Apes Hill Club
Homeowners’ Association Inc.; Articles of Incorporation of
Apes Hill Club Homeowners’ Association Inc.; By-laws of Apes
Hill Homeowners Association Inc.; the Club Rules and Regulations;
the form of agreement for sale and purchase of Lots; marketing
materials relating to the Project and all and any other documents
relating to the formation and running of the Development and any
amendments, variations or substitutions thereto.
“Project
Manager” means such project manager who is employed by the
Borrower and approved by BNB FTC and BNB in connection with the
Project.
“Project
Manager’s Certificate” means a certificate in a form
satisfactory to BNB FTC signed by the Project Manager.
“Project
Review Team” means the team of consultants, professionals and
other advisors appointed by BNB FTC or BNB for the purposes set
forth in Clause 9.1(f)(ii) hereto.
“Property” means the Land together
with the hotel, club house, golf course, recreational facilities,
residential development and all and any other buildings and
erections to be constructed thereon and all other present and
future assets of the Borrower, including personal
property.
“Proprietary Interest” means a legal
or equitable interest in land acquired by a Person that can be
enforced by that Person against any other person, but not including
any revocable contractual licence granted to a member of the Club
pursuant to the Club Rules.
“Quantity
Surveyor” means Cooper Kaufman or such other quantity
surveyor who is employed by the Borrower and approved by BNB FTC in
connection with the Project.
“Quantity
Surveyors’ Certificate” means a certificate as
specified in Clause 9.1(c) hereto.
“Queen
Street Land” means the land containing 1,557.6 square metres
or thereabouts and situate at Queen Street in the parish of Saint
Peter in Barbados, more particularly described in the Fourth
Schedule hereto
“Related
Party” means any Person that is owned or controlled by the
Borrower, one of the Project Sponsors, any member of the Borrower
or any affiliate of the Borrower or one of the Project
Sponsor.
“Release
Fee” means the fee payable by the Borrower to BNB on the sale
of each Lot out of the proceeds of the sale of such Lot.
“Requirement of Law” means, as to
any Person, the certificate of incorporation and by-laws or other
organizational or governing documents of such Person, and any law,
treaty, rule or regulation, or determination of an arbitrator or a
court or other governmental authority or agency, in each case
applicable to or binding upon such Person or any of its property or
to which such Person or any of its property is subject.
“Second
Tranche” means the sum of not more than Seventeen Million
Nine Hundred Thousand US Dollars to be disbursed partly in US
Dollars and partly in Barbados Dollars, being part of the Loan that
will be used by the Borrower to construct a hotel, golf course and
Golf Structures, construct the residential development, Master Site
Improvements, Initial Lot Development and to perform
marketing.
“Security” means the security as
specified in Clause 7.1 hereto.
“Shares” means the Godings Bay (BVI)
Limited Shares, the Cobblers (BVI) Limited Shares.
“Subsidiaries” means Godings Bay
(BVI) Limited, Cobblers (BVI) Limited and Cobblers (Barbados)
Limited and “Subsidiary” means any one of
them.
“Substantial Completion” means the
date on which a Quantity Surveyors’ Certificate has been
delivered to the Borrower certifying that substantial completion
has been achieved according to the Construction Schedule and the
Plans and Specifications for the completion of the
Project.
“Taxes” means all present and future
taxes, levies, imposts, duties, charges, fees, deductions and
withholdings imposed or required by a governmental, fiscal or other
authority and “Tax” and “Taxation” shall be
construed accordingly.
“Third
Tranche” means the sum of not more than Seventeen Million US
Dollars to be disbursed party in US Dollars and partly in Barbados
Dollars, being part of the Loan that will be used by the Borrower
to purchase the Godings Bay (BVI) Limited Shares, the Cobblers
(BVI) Limited Shares and the Queen Street Land, legal and banking
charges and out of pocket expenses associated with the purchase and
for the Initial Development of the Beachfront Land.
“US
Dollars” or “US$” means the lawful currency of
the United States of America.
3. LOAN
FACILITY
Subject to the
approval of the Exchange Control Authority and upon the terms and
conditions herein set forth, BNB FTC hereby agrees to arrange and
underwrite a loan facility to the Borrower consisting of the First
Tranche, the Second Tranche, the Third Tranche and the Fourth
Tranche, which shall together be up to an aggregate of Sixty
Million Seven Hundred Thousand US Dollars (US$60,700,000.00) to be
advanced partly in US Dollars and partly in Barbados
Dollars or such other amount as may be agreed between
BNB FTC and the Borrower in accordance with the terms of this
Agreement.
The First
Tranche and the Second Tranche shall be for the purpose of
constructing a golf course and Golf Structures, Master Site
Improvements, Initial Lot Development, marketing and acquiring
working capital. The Third Tranche shall be for the
purpose of purchasing the Godings Bay (BVI) Limited Shares, the
Cobblers (BVI) Limited Shares and the Queen Street Land and for the
Initial Development of the Beachfront Land. The Fourth Tranche
shall be for the purpose of developing Parcel B of the
Development.
3.3 Conditions
Precedent to Advances
(a) The
First Tranche, the Second Tranche and the Fourth Tranche shall be
disbursed from time to time by way of Advances.
(b) BNB
and BNB FTC shall not be obliged to make available any Advances in
respect of the First Tranche unless the Conditions Precedent for
the First Tranche have been met.
(c) The
making of any Advances by BNB FTC or BNB prior to BNB FTC and BNB
being satisfied that the Borrower has met the Conditions Precedent
to the First Tranche shall not be deemed to be a waiver by BNB FTC
or BNB of any of the Conditions Precedent to the First
Tranche.
(d) BNB
FTC and BNB shall not be obliged to make available any Advances in
respect of the Second Tranche unless the Conditions Precedent to
the Second Tranche have been met.
(e) BNB
FTC and BNB shall not be obliged to make available any Advances in
respect of the Fourth Tranche unless the Conditions Precedent to
the Fourth Tranche have been met.
3.4 Disbursement
of Third Tranche
(a) The
Third Tranche shall be disbursed by way of Advances as
follows:- (i)US$1,142,294.96 and BDS$597,633.56 to repay
the existing loan made by BNB to the Borrower which shall be
disbursed on the 21 st day of June, 2007; (ii) US$9,900,000.00 to
purchase the Cobblers (BVI) Limited Shares and the Godings Bay
(BVI) Limited Shares; (iii) BDS$5,220,000.00 for the purchase of
the Queen Street Lands which shall be disbursed on the 21
st day of June, 2007, and (iv) US$3,048,888.26 for
the Initial Development of the Beachfront Land and legal and
banking charges and out of pocket expenses of which part shall be
disbursed on the 21 st day of June, 2007 and the remainder by way of
further Advances as set out in Clause 3.5(b) below.
(b) BNB
FTC and BNB shall not be obligated to make available any Advances
in respect of the Third Tranche unless the Conditions Precedent to
the Third Tranche have been met.
3.5 Required
Notice
(a) Whenever
the Borrower requires an Advance under the First Tranche, the
Second Tranche or the Fourth Tranche of the Loan in order to make
any payments due by the Borrower in accordance with the Project
Budget, but in any event not more than once per month, it shall
give to BNB FTC and BNB no less than five (5) Business Days’
prior written notice (“a Notice of Borrowing”)
specifying the required amount of the Advance, the purpose for the
Advance and the date (which shall be a Business Day) on which such
Advance is to be obtained. Each such notice shall be accompanied by
a Quantity Surveyors’ Certificate referred to in Clause
9.1(g) hereto in the form annexed hereto.
(b) When
the Borrower requires any further Advances of the Third Tranche,
which is to be used in connection with the Initial Development of
the Beachfront Land, it shall give to BNB FTC and BNB no less than
five (5) Business Days’ prior written notice (“a Notice
of Borrowing”) accompanied by any such supporting
documentation as BNB FTC and BNB may require.
(c) The
Borrower shall provide BNB FTC and BNB with such other supporting
documents and information as BNB FTC and BNB may from time to time
require in connection with any request for an Advance.
(d) If
BNB FTC and BNB determine that the Advance requested in accordance
with Clause 3.4(a) hereto is not included in the Project Budget
which has been approved by BNB FTC or is not satisfied on
reasonable grounds as to the purpose of the Advance or the amount
required or the information provided in support of the request for
the Advance, BNB FTC and BNB may in its discretion refuse to pay
all or any part of the Advance requested in the Notice of
Borrowing.
(a) Subject
to the provisions of this Clause 3.5, the Borrower may request the
currency, being US Dollars or Barbados Dollars, in which it wishes
each Advance or any part thereof of the First Tranche, the Second
Tranche or the Fourth Tranche to be denominated, with up to a
maximum of fifty percent (50%) of the Loan being made available in
US Dollars. The Borrower shall specify the currency
requested in the Notice of Borrowing referred to in Clause 3.3
hereto. BNB FTC and BNB shall use its best endeavours to pay the
Advance in the currency which the Borrower has requested in the
Notice of Borrowing, but it is agreed and acknowledged by the
Borrower that BNB FTC and BNB may not be able to pay all Advances
in the currency requested by the Borrower and that the currency of
each Advance shall be at the discretion of BNB FTC and BNB and BNB
FTC and BNB reserve the right to make any Advance in Barbados
Dollars or US Dollars without penalty or other recourse.
(b) In
the event of any change in currency availability or exchange rates
or exchange control regulations or if there is any other reason
which, in the opinion of BNB FTC and BNB, makes it impracticable
for an Advance or part thereof to be made in US Dollars, the
relevant advance or such part thereof may be made in the Barbados
Dollar equivalent of what would have been the amount of such
Advance or part thereof if it had been made in US
Dollars.
3.7 Direct
Payment; Liens
BNB FTC and BNB
reserve the right to pay all or any part of any Advance in respect
of the First Tranche, the Second Tranche or the Fourth Tranche
directly to a Contractor to whom a payment is certified by the
Quantity Surveyor to be due or to suppliers providing work and
materials for the Project, and the Borrower hereby authorizes such
payments. BNB FTC and BNB shall be entitled to deduct from each
Advance all holdbacks relating to the Project required by any
permitted applicable Permitted Lien or legislation and to hold the
amounts so deducted until such time as BNB FTC and BNB shall be
satisfied that all Lien periods have expired and no Lien has been
filed with respect to work or materials supplied to the Project,
and the Borrower agrees to provide to BNB FTC and BNB such Quantity
Surveyors’ Certificates or opinions of its counsel as BNB FTC
and BNB deem necessary in order to permit BNB FTC and BNB to
satisfy itself with respect thereto.
4. INTEREST
RATES
4.1 The
interest rate on Advances made under the First Tranche, the Second
Tranche, the Third Tranche and the Fourth Tranche shall
be as follows:-
(a) The
interest rate on any Advances made in Barbados Dollars shall be
floating at the Barbados National Bank prime lending rate such
interest to be accrued monthly and capitalized
quarterly.
(b) The
interest rate on any Advances made in US Dollars shall be floating
at 3 month LIBOR plus 4% such interest to be accrued
monthly and capitalized quarterly.
(c) Advances
under the First Tranche, the Second Tranche, the Third Tranche and
the Fourth Tranche shall bear interest both before and after
maturity, default or judgment on the unpaid amount
thereof.
4.2 Interest
shall be:-
(a) payable
on the outstanding amount of the Loan from the date of disbursement
of each Advance;
(b) paid
in arrears;
(c) calculated
by multiplying the actual number of days elapsed in the period for
which interest is being calculated at a daily rate based on three
hundred and sixty day year.
Provided however that there shall be a moratorium on interest for
two years from the 4 th day of May, 2006 and that interest shall start
to be payable on the outstanding amount of the Loan on the 4
th day of May, 2008 in the event that no sales of
Lots are completed prior to that date.
5. FEES
5.1 Underwriting
Fee
(a) In
connection with the First Tranche and the Second Tranche, the
Borrower shall pay to BNB FTC a fee of Five hundred and twenty
thousand Barbados Dollars (BDS$520,500.00) without any deductions
on the date of the first Advance in respect of underwriting
services provided by BNB FTC.
(b) In
connection with the Third Tranche, the Borrower shall pay to BNB
FTC a fee of 1% of the amount of the Third Tranche without any
deduction on the date of the disbursement of the first Advance of
the Third Tranche in respect of underwriting services provided by
BNB FTC.
(c) In
connection with the Fourth Tranche, the Borrower shall pay to BNB
FTC a fee of 0.5% of the amount of the Fourth Tranche without any
deduction on the date of the disbursement of the first Advance of
the Fourth Tranche in respect of underwriting services provided by
BNB FTC.
5.2 Management
Fee
The Borrower
shall pay to BNB FTC a fee of One Hundred Thousand Barbados Dollars
(BDS$100,000.00) without any deductions on the date of the first
Advance in respect of management services provided by BNB FTC, its
agents or assigns.
6. REPAYMENT
6.1 Loan
Payments
(a) The
Borrower shall repay all Advances in respect of the First Tranche,
the Second Tranche and the Third Tranche and all other amounts due
under this Agreement in full by the 4 th day of May, 2011.
(b) The
Borrower shall repay all Advances in respect of the Fourth Tranche
not later than six months after the date of disbursement of each
Advance under the Fourth Tranche.
(c) Subject
to Clause 6.1(b) and as hereinafter provided, the principal amount
of the Loan and any capitalized interest thereon shall be repaid
out of the Release Fees in accordance with the formula set out in
Clause 6.1 (d) or as may otherwise be agreed between BNB and BNB
FTC and the Borrower.
(d) On
the completion of the sale of each Lot, BNB or BNB FTC shall be
paid a Release Fee by the Borrower calculated using the following
formula:-
(i) On
any sales in Year 1 and
2 following
the 4 th
day of May 2006 - US$350,000.00 per
acre or part thereof.
(ii) On
any sales in Year 3 following the 4 th day of May 2006 - US$400,000.00 per acre or part
thereof
(iii) On
any sales in Year 4 following the 4 th day of May 2006 – US$550,000.00 per acre
or part thereof; and
(iv) On
any sales in Year 5 following the 4 th day of May 2006 - US$600,000.00 per acre or part
thereof
(e) In
addition to the Release Fee referred to in Clause 6.1(d), the
Borrower shall on the sale of each Lot pay to BNB or BNB FTC out of
the proceeds of the sale of such Lot remaining after payment of the
Release Fee any outstanding interest which has accrued to the date
of the completion of the sale of such Lot or other part of the Land
but has not yet been capitalized.
(f) On
the completion of the sale of each Lot and after the payment of the
Release Fee referred to in Clause 6.1(d) and any accrued interest
referred to in Clause 6.1(e), the Borrower shall pay to BNB or BNB
FTC out of the remaining proceeds of the sale of such Lot on
account of the Advances made in respect of the Fourth Tranche such
amount as may be agreed from time to time between the Borrower and
BNB or BNB FTC, provided however that if such amount is not agreed
then the amount to be paid by the Borrower to BNB or BNB FTC shall
be determined by BNB or BNB FTC.
(g) In
the event that any Lot is sold at a price per acre or part thereof
which would result in a Release Fee that is less than the amount
set out in Clause 6.1(d), the Borrower shall make up any shortfall
between the sale price of such Lot and the amount set out in Clause
6.1(d) hereto.
(h) In
the event that the Borrower wishes to sell any part of the Land
that does not consist of Lots, the Borrower shall obtain the
consent of BNB and BNB FTC to such sale prior to entering into the
same and BNB and BNB FTC shall stipulate the payment that it will
require in order to release such part of the Land from the Mortgage
/ Debenture, the Composite Mortgage / Debenture or the third
Mortgage / Debenture referred to in Clause 7.1 hereto, Provided
however that all common areas and open spaces relating to a
particular Parcel shall be released without any payment for such
release upon the sale of the last Lot in such Parcel.
(i) In
addition to the Release Fees specified in Clause 6.1 (d), any
interest payable in accordance with Clause 6.1 (e) or any payment
under Clause 6.1(f), the Borrower shall on the sale of each Lot or
other part of the Land pay any legal fees, stamp duty and other
costs, fees and expenses in connection with the release by BNB of
such Lot or other part of the Land and in connection with the
release by BNB of the Beachfront Land or any part
thereof.
(j) The
facility contemplated by this Agreement is not a revolving credit
facility and, even if each Advance hereunder is repaid to BNB or
BNB FTC before such repayment is required hereunder, BNB and BNB
FTC are not required to make any further Advance
hereunder.
6.2 Escrow
Account
Any monies
received by the Borrower, including the proceeds from the sale of
the Land or parts thereof, which are not applied towards the
payment of the principal on the Loan in accordance with Clause 6.1
hereto, shall be placed in an escrow account pursuant to the terms
of the Escrow Agreement.
6.3 Prepayment
The Borrower
may prepay the whole or any part of the Loan on any date upon the
giving of thirty (30) days’ written notice of its intention
to do so. Such prepayment shall be without penalty and
shall be a minimum of One Hundred Thousand US Dollars
(US$100,000.00).
6.4 Payments
on Non-Business Days
Whenever
payment to be made hereunder shall be stated to be due on a day
which is not a Business Day, the due date thereof shall be extended
to the next succeeding Business Day, and any interest and fees with
respect thereto shall be payable at the appropriate rate during
such extension.
6.5 Methods
and Place of Payment, etc.
Except as
otherwise specifically provided herein, all payments by the
Borrower under this Agreement shall be made to BNB or BNB FTC at
No. 1 Independence Square, Bridgetown, Barbados or such other
address in Barbados as may be designated by BNB or BNB FTC from
time to time not later than 3:00 p.m. (local time) on the date when
due, and shall be made in immediately available funds.
6.6 Net
Payments and Adjustments
All payments
made by the Borrower under this Agreement, inclusive of interest
and finance fees, shall be made without set-off or counterclaim or
other deduction and free and clear of, and without reduction for or
on account of any Taxes. If the Borrower shall be required by law
to deduct any such Taxes from or in respect of any sum payable
hereunder to BNB or BNB FTC (i) the sum payable by the Borrower
shall be increased as may be necessary so that after the Borrower
has made all required deductions (including deductions applicable
to additional sums payable hereunder), BNB or BNB FTC receives an
amount equal to the sum it would have received had no such
deductions been made; (ii) the Borrower shall make all such
deductions; and (iii) the Borrower shall pay the full amount
deducted to the relevant taxation authority or other authority in
accordance with Applicable Law.
6.7 Currency
6.7.1 The
Borrower shall use its best endeavours to ensure that each
repayment or prepayment under this Agreement shall be made in the
currency in which the relevant Advance was denominated.
6.7.2 Any
obligation of the Borrower to make payments under this Agreement in
US Dollars shall not be discharged or satisfied by any tender or
recovery, whether pursuant to any judgment or otherwise, expressed
in or converted into any other currency except to the extent that
such tender or recovery results in the effective receipt by BNB or
BNB FTC of the full amount of United States Dollars, payable to it,
and the Borrower shall indemnify BNB and BNB FTC (and BNB and BNB
FTC shall have an additional legal claim against the Borrower) for
any difference between such full amount and the amount effectively
received by BNB or BNB FTC pursuant to such tender or
recovery. In the absence of manifest error, BNB or BNB
FTC’s reasonable determination of currency exchange rates and
of amounts effectively received by the parties hereto shall be
conclusive.
7. SECURITY
7.1 Form
of Security
As general and
continuing security for the due payment of the Loan by the Borrower
to BNB and BNB FTC under this Agreement, there shall be provided to
BNB the following security in form and substance satisfactory to
BNB and BNB FTC:-
(a) a
registered first priority Mortgage / Debenture stamped to cover
US$34,700,000.00 or the equivalent in Barbados Dollars effecting a
legal charge over the Property and over all of the present and
future assets of the Borrower;
(b) the
C.O. Williams Charge over Quotas stamped to cover US$23,444,000.00
or the equivalent in Barbados Dollars issued by the Borrower to
C.O. Williams Investments Inc., being 8,000,000 quotas;
(c) the
Landmark Charge over Quotas stamped to cover US$11,256,000.00 or
the equivalent in Barbados Dollars issued by the Borrower to LML
Caribbean Limited, being 4,000,000 quotas;
(d) acknowledged
assignment of Fire and All Risk Insurance over the assets of the
Borrower, such policy to be in a form and amount and issued by an
insurer acceptable to BNB FTC and BNB with interest of BNB as first
payee noted thereon;
(e) assignment
of each Contractor’s Performance Bond equivalent to 10% of
the value of the relevant construction or development contract made
between any Contractor and the Borrower;
(f) acknowledged
assignment of the Contractors’ All-risk insurance coverage to
be maintained by each Contractor with loss payable to BNB as first
payee, such insurance to cover such risks including but not limited
to:-
(i) insurance
of the site and work materials;
(ii) workman
compensation insurance;
(iii) professional
indemnity insurance;
(iv) property
and indemnity to employer;
(v) insurance
against personal injury or damage.
(g) subordination
of any loans made by members of the Borrower to the Borrower or by
any shareholder of any of the Subsidiaries to such
Subsidiary.
(h) Composite
Mortgage/Debenture stamped to cover US$13,900,000 or its equivalent
in Barbados dollars and BDS$6,200,000 comprising of
(i) first legal mortgage over the Beachfront Land; (ii) second
legal mortgage/debenture over the Land and over present and future
fixed and floating assets of the Borrower; (iii) first charge over
the present and future fixed and floating assets of Godings Bay
(BVI) Limited; (iv) first charge over the present and future fixed
and floating assets of Cobblers (BVI) Limited; (v)
charge over the Godings Bay (BVI) Limited Shares, being 50,000
shares; (vi) charge over Cobblers (BVI) Limited
Shares, being 50,000 shares; and (vii) charge over
the Cobblers (Barbados) Limited Shares, being 200 Class A Common
Shares and 100 Class B Common Shares;
(i) guarantees
of the Borrower and of Godings Bay (BVI) Limited, Cobblers
(Barbados) Limited and Cobblers (BVI) Limited;
(j) acknowledged
assignment of the fire and all-risk insurance coverage over the
Beachfront Land to be maintained by the Borrower or the
Subsidiaries with loss payable to BNB as first payee, such
insurance to cover such risks including but not limited to
insurance against personal injury or damage.
(k) a
registered third priority Mortgage / Debenture stamped to cover
US$9,000,000.00 or the equivalent in Barbados Dollars effecting a
legal charge over the Property and over all of the present and
future assets of the Borrower.
7.2 Registration
BNB’s
counsel shall, at the expense of the Borrower, register, file or
record the Security pursuant to all applicable laws and in all
offices where such registration, filing or recording is necessary
or of advantage to the creation, perfection and preserving the
Security applicable to it including, without limitation, in the
Corporate Registry of Barbados, in the Land Registry of Barbados,
in the Corporate Registry of St. Lucia and in the Corporate
Registry of the British Virgin Islands. BNB’s counsel shall
renew such registrations, filings and recordings from time to time
as and when required to keep them in full force and effect. The
Security has been or shall be prepared based on the applicable laws
of Barbados applicable thereto in effect at the date thereof and
amended from time to time. BNB shall have the right to require that
any such documentation be amended to reflect any amendments to any
laws, whether arising as a result of statutory amendments, court
decisions or otherwise, in order to confer upon BNB the security
interests intended to be created thereby, except that in no event
shall BNB require that any such amendment be effected if the result
thereof would be to grant to BNB greater rights than is otherwise
contemplated herein.
7.3 After
Acquired Property and Further Assurances
The Borrower
shall or shall procure that the Subsidiaries from time to time
execute and deliver all such further deeds or other instruments of
conveyance, assignment, transfer, mortgage, pledge or charge in
connection with all assets acquired by the Borrower or the
Subsidiaries in respect of the Property and the Beachfront Land
after the date hereof and intended to be subject to security
interests created hereby including any insurance thereon; provided
however that the foregoing obligation of the Borrower or the
Subsidiaries to execute and deliver deeds or other instruments
shall only apply whenever the Borrower is requested to do so by BNB
FTC or BNB.
8. REPRESENTATIONS
AND WARRANTIES
8.1 To
induce BNB or BNB FTC to make each Advance available to the
Borrower, the Borrower represents and warrants to BNB FTC and BNB
that as of the date hereof, at the date of each request for an
Advance and during the period that any monies remain outstanding to
BNB or BNB FTC:-
(a)
Corporate Status and Qualifications
(i) The
Borrower is a society with restricted liability duly formed under
the laws of Barbados and validly existing under the laws of
Barbados, is in good standing under such laws and is duly qualified
and has full corporate power and legal right to own its property,
to enter into and to perform its rights and obligations under the
Security and this Agreement and to otherwise carry on its business
as now conducted, and is in compliance with all Requirements of Law
except to the extent that the failure to comply therewith would
not, in the aggregate, have a material adverse effect on the
business, operations, property or condition (financial or
otherwise) of the Borrower and would not materially adversely
affect the ability of the Borrower to perform its obligations under
this Agreement or the Security to which it is a party.
(ii) The
Subsidiaries have each been duly formed under the laws of
jurisdiction of their incorporation and are validly existing under
the laws of the British Virgin Islands and Barbados, as the case
may be, are in good standing under such laws and are duly qualified
and have full corporate power and legal right to own their
property, to enter into and to perform their rights and obligations
under the Security and to otherwise carry on their business as now
conducted, and are in compliance with all Requirements of Law
except to the extent that the failure to comply therewith would
not, in the aggregate, have a material adverse effect on the
business, operations, property or condition (financial or
otherwise) of the Subsidiary and would not materially adversely
affect the ability of the Subsidiary to perform its obligations
under the Security to which it is a party.
(b)
Business of the Borrower
The Project, the maintenance and management of
the Development and the Initial Development of the Beachfront Land
are the only business of the Borrower, and the Borrower has never
engaged in any other business.
(c)
Quotas and Shares
(i) The
quotas referred to in Clause 7.1 (b) and (c) hereto represent all
of the issued and outstanding quotas of the Society, and no other
quotas have been issued or are outstanding.
(ii) The
shares referred to in Clause 7.1 (h) hereto represent all of the
issued and outstanding shares of the Subsidiaries, and no other
shares have been issued or are outstanding.
(d)
Authorization; Consents; Enforceable Obligations
(i) The
Borrower has taken all corporate action necessary to be taken by it
to authorize the obtaining of the Loan by it hereunder and the
execution and delivery of, and the performance of its obligations
under this Agreement and the Security to which it is a
party. Except as otherwise contemplated in this
Agreement, no consent, waiver or authorization of, or filing with,
any person (including, without limitation, any creditors of the
Borrower or any governmental authority or agency) is required to be
obtained by the Borrower in connection with the obtaining of the
Loan hereunder by the Borrower or the execution and delivery of,
and the performance, validity or enforceability of this Agreement
or the Security to which the Borrower is a party. This
Agreement and the Security to which the Borrower is a party have
been duly executed and delivered by the Borrower, and, once the
Security has been registered as contemplated in Clause 7.2 hereof,
constitute legal, valid and binding obligations of the Borrower
enforceable against the Borrower in accordance with their
respective terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency or similar laws affecting the
enforceability of creditors’ rights generally or by general
principles of equity.
(ii) Each
of the Subsidiaries have taken all corporate action necessary to be
taken by each one of them to authorize the execution and delivery
of, and the performance of its obligations under the Security to
which it is a party. Except as otherwise contemplated in
this Agreement, no consent, waiver or authorization of, or filing
with, any person (including, without limitation, any creditors of
the Subsidiaries or any governmental authority or agency) is
required to be obtained by any of the Subsidiaries in connection
with the execution and delivery of or the performance, validity or
enforceability of the Security to which the Subsidiary is a
party. The Security to which the Subsidiaries are a
party have been duly executed and delivered by each of the
Subsidiaries, and, once the Security has been registered as
contemplated in Clause 7.2 hereof, constitute legal, valid and
binding obligations of the Subsidiaries enforceable against the
Subsidiaries in accordance with their respective terms, except as
such enforceability may be limited by applicable bankruptcy,
insolvency or similar laws affecting the enforceability of
creditors’ rights generally or by general principles of
equity.
(e)
Litigation
There is no action, suit or proceeding (whether
or not purportedly on behalf of the Borrower or any Subsidiary)
pending or, to the knowledge of the Borrower, threatened, against
or affecting the Borrower or any Subsidiary before any court or
before or by any governmental department, commission or agency, in
Barbados or elsewhere, or before any arbitrator or board, which has
the effect of a Material Adverse Change or has any reasonable
likelihood of having such effect on the Borrower or any Subsidiary,
and neither the Borrower or any of the Subsidiaries is in default
with respect to any judgment, order, writ, injunction,
decree or award of any court, arbitrator or government department,
commission or agency, in Barbados or elsewhere.
(f)
Burdensome Provisions
Neither the Borrower nor the Subsidiaries are a
party to any agreement or instrument or subject to any rule,
regulation or restriction or to any judgment, order, writ,
injunction, decree or award, which materially adversely affects, or
which has any reasonable likelihood of materially adversely
affecting, the business, operations, property or condition
(financial or otherwise) of the Borrower or any
Subsidiary.
(g)
Compliance with Other Instruments
Neither the Borrower nor any of the Subsidiaries
are in default in the performance or observance of any of the
obligations, covenants or conditions contained in any bond,
debenture, note, conditional sale agreement, lease, loan agreement
or other similar document evidencing any indebtedness, liability or
obligation of the Borrower or any Subsidiary or contained in any
agreement or deed under or pursuant to which any of the foregoing
has been issued or made and delivered, which default entitles the
holder or holders, with or without the giving of notice of such
default or the lapse of time, to declare any such indebtedness or
liability or
