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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC, 20549
FORM SB-2/A
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
INTERCONTINENTAL CAPITAL & INVESTMENT FUND INC.
(Exact name of registrant as specified in its charter)
TEXAS 6159
(State or other jurisdiction (Primary Standard Industrial
of incorporation or organization) Classification Code Number)
75-2784245
(Employer Identification Number)
P.O. BOX 15155, FORT WORTH, TX 76119 (817) 534-7305
(Address, including zip code, and telephone number, including area
code, of registrant's principal executive offices)
BONIFACE SULEMAN ODIODIO
P.O. BOX 15155, FORT WORTH, TX 76119 (817) 534-7305
(Name, address, including zip code, tend telephone number,
including area code, of agent for service)
September 20th 1999
_________________________________________________________________
(Approximate date of commencement of proposed sale to the public)
If this form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same offering [ ]
If this form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, please check the
following box and list the Securities Act registration
statement number of the earlier effective registration
statement for the same offering [ ]
If this form is a post-effective amendment filed pursuant to
Rule 462(d) under the Securities Act, please check the
following box and list the Securities Act registration
statement number of the earlier effective registration
statement for the same offering [ ]
If delivery of the prospectus is expected to be made pursuant
to Rule 434, check the following box [ ]
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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Calculation of Registration Fee
Title of Each Class Amount Offering Proposed Maximum Amount of
of Securities to to be Price Aggregate Registration
be Registered Registered Per Unit Offering Price Fee
- ----------------------- ---------- --------- ---------------- ------------
<S> <C> <C> <C> <C>
Corporate Bond Series 1 5,000 $1,000.00 $5,000,000.00 $1,475.00
- --------------------------------------------------------------------------------
</TABLE>
<PAGE>
Prospectus
Intercontinental Capital & Investment Fund Inc.
$5,000,000.00
5000 units at $1,000.00 per unit
Corporate Bond Series 1
Floating Rate Notes 1999-2024
P. O. Box 15155
Fort Worth, Texas 76119
Phone 817-534-7305
Intercontinental Capital & Investment Fund Inc. is a financial
service company. We provide specialized financing to
businesses worldwide.
* This is our initial public bond offering.
* No public market currently exists for our securities.
* Our bonds are offered to the public for cash or cash
equivalents only.
The offering price does not reflect the market value of our
bonds and has no relation to our assets, book value or any
other recognized method of value.
The Offering Per unit Total Minimum
Public Price $1,000 $5,000,000 $2,500,000
Sponsor's Commission $ 45 $ 225,000 $ 112,500
Net Proceed $ 955 $4,775,000 $2,387,500
These bonds are registered with the Securities and Exchange
Commission (SEC), in compliance with its rules and
regulations and its amendments. Additional information may be
required of us by the SEC. Investors must rely on the
information contained in this prospectus and on file with the
SEC, as well as any independent review undertaken by the
investor.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved these bonds
or passed judgment upon the adequacy or accuracy of this
prospectus. Any representation to the contrary is a criminal
offense.
This is not an offer to sell these bonds nor are we
soliciting an offer for Investors to buy these securities, if
the offer or sale is not permitted, unlawful, or illegal in
their state.
This Investment involves a Degree of Risk. Investors should
purchase these Bonds only if the investor can afford to hold
these bonds over the 25 years duration of the securities.
See "Risk Factor" on page 5 and "Sinking Fund" I and II on
page 9.
AUGUST 30TH, 1999
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PART I - INFORMATION REQUIRED IN PROSPECTUS
TABLE OF CONTENTS
Offering Summary 4
Risk Factors 5
Use of Proceeds 9
Determination of Offering Price 10
Dilution 11
Selling Security Holders 11
Plan of Distribution 11
Legal Proceedings 11
Directors, Executive Officers, Promoter and Control Person 12
Ownership Interest 12
Description of Securities 14
Agents 14
Interest of Name Experts and Counsel 14
Disclosure of Commission's Position of Indemnification for
Securities Act Liabilities 14
Organization within last five years 15
Description of Business 15
Management's Discussion and Analysis of Plan of Operation 16
Description of Property 16
Market for Securities and Related Securities Matters 16
Executive Compensation 16
Auditor's Report 17
General information 25
Supplement Exhibits 25
Subscription Agreement 26
PART II - INFORMATION NOT REQUIRED IN PROSPECTUS
Indemnification of Directors 31
Other Expenses Issuance 31
Exhibits
Exhibit 1. Underwriting Agreement see Exhibit D 33
Exhibit 2. Plan of acquisition, reorganization, arrangement,
liquidation or succession 33
Exhibit 3. Instrument defining the rights of security holders 34
Exhibit 4. Opinion re legality 37
Exhibit 5. Opinion re tax matters 38
Exhibit 6. Material Contracts 39
Exhibit 7. Consent of experts and counsel 50
Exhibit 8. Power of attorney 51
Exhibit 9. Statement of eligibility of trustee 51
Exhibit 10. Invitation for competitive bids 51
Other Additional Exhibits
Exhibit A Other Financial Data and projections 52-i,ii,iii
Exhibit B Other General information 53
Exhibit C Articles of Incorporation 54
Exhibit D Directors meeting to issue the Corporate Bond
Series 1 Floating Rate 1999 - 2024 56
Exhibit E Resolution to appoint The Indenture Trustee Custodial
Agent, Transfer Agent, Registrar Agent, Paying Agent,
Conversion Agent and Escrow Agent for Bond Series 1 58
Appendix A Indenture Agreement and accompanying documents 60
SPECIAL NOTE: The terms "THE COMPANY" OR "THE ISSUER" ARE USED INTERCHANGEABLY.
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<PAGE>
OFFERING SUMMARY
THE COMPANY
Intercontinental Capital & Investment Fund Inc. (the Company)
is incorporated under the state law of Texas with Charter
Number 01507389-00 issued On September 29th,1998 in Austin,
Texas, USA.
Presently, the Company's only activities are obtaining funds
through the issuance and sale of securities by private and
public sale and financing companies from the proceeds.
We have plans in the future for additional offerings, and we
also intend to administer our loans and equity interests once
our bonds are sold.
Currently we have three (3) full-time employees working from
Monday to Friday. In addition we maintain a relationship with
other professionals that provide marketing consultation and
information but are not part of our permanent or temporary
staff.
Our legal address is P.O. BOX 15155, Fort Worth, 76119, Texas,
United States; Phone 817-534-7305, Fax 817-534-7803, E-mail
[email protected] or E-mail: [email protected].
We are not a subsidiary of any company. We will issue all or
part of our Common Stock to the Sponsor, our attorney, and
Upperace Enterprise Inc. upon successful placement of these
securities; we plan to issue shares of our non-voting Preferred
Stock to the Qualified Borrowers as part of the loan agreement.
THE OFFERING
Corporate Bonds to the order of Bearer in the total amount of
Five Million US Dollars (US$5,000,000.00) with a maturity date
of 25 years, from July 1st, 1999 to June 30th, 2024. The
characteristics and denominations of the bonds are as follows:
Five thousand (5,000) units of One Thousand Dollars
(US$1,000.00) per unit, payable at a floating interest rate of
0.5% per year over the 25-year U.S. Treasury yield for dollar
($) deposits; this rate to be fixed on the first Friday in June
of each year, as published in the Wall Street Journal. The
minimum interest rate, however, shall be six and three-quarter
percent (6.75%) per annum.
Sinking Fund I: Will guarantee payment of Principal of these
bonds at maturity. This Sinking Fund is created by the
purchase of U.S. Treasury "Strips" issued by the United States
Treasury, which upon maturity will equal $5,000,000.00 and be
utilized to pay off the Bond principal.
Sinking Fund II: Will guarantee payment of Interest on these
bonds at maturity, should we default on the interest payment to
the bondholders. This Sinking Fund is created by the purchase
of U.S. Treasury "Strips" issued by the United States Treasury
or by a "Guaranteed Fixed Annuity" or a " Surety Bond" issued
by an "AAA" rated Insurance Company. Upon maturity will equal
$8,437,500.00 and be utilized to pay off the interest due
bondholders, should a default on interest payment occur.
Secured Promissory Notes: Bearing an aggregate principal value
of US$5,000,000.00 at 8.75% interest yearly from our borrowers,
will also guarantee payments of interest to bondholders. The
borrower's interest payments will be collected by a custodial
agent and be utilized to pay interest on our bonds yearly.
Insurance Guaranty: In addition to the Sinking Funds and the
Secured Promissory Notes an insurance guuaranty will be created
by the purchase of performace bond or surety bond to guarantee
the yearly interest payment.
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RISK FACTORS
Arbitrary Offering Price: The offering price of the bond and
the proceeds among the components has been determined by us
based on the loan amount sought by borrowers, the creation of
the sinking funds, insurance indemnity and commission
requirements. It bears no relationship to our assets, book
value, net worth, earnings, actual results of operations or any
other established investment criteria.
Price Determining Factors: Among the factors considered in
determining our offering price were our current financial
condition, cash requirements, general market condition of
securities, growth prospects and future acquisitions and
financing. The offering price on the cover page of this
prospectus should not be considered an indication of our actual
market value.
Best Efforts Offering: Our offering is being made on a "best
efforts" basis. No commitment exists to purchase all or any
part of the bonds being offered; rather, we along with certain
selected dealers have agreed to use our best efforts to offer
the bond to investors meeting certain investment criteria.
Reliance upon Officers and Directors: We are solely dependent
upon the personal efforts and abilities of our officers and
directors. The loss of or unavailability of the services of
these officers and directors would have a materially adverse
effect on our business prospects and potential earning
capacity. We currently have no insurance to compensate for
this loss; however, we intend to obtain such insurance in the
future.
Financial Burden on Investors: A substantial amount of the
financial risk of our business activities will be absolved by
the investors who purchase these bonds, while management and
principal shareholders stand to realize benefits from
significant stock ownership.
Dependence on Key Personnel: Our success is dependent on the
efforts and abilities of the officers and directors. Our
ability to attract and retain qualified operational and
management personnel is critical to our operational success.
Attraction of Personnel: We have been able to attract and
retain the expertise needed; however, there can be no assurance
that we will be able to do so in the future. If we were
unable to employ the required expertise needed, then our
business would be materially and adversely affected.
Government Regulation: We are subject to applicable provisions
of federal and state securities laws and to regulations
specifically governing each respective issue. Although we will
make every effort to comply with applicable regulations, we can
provide no assurance of our ability to do so, nor can we
predict the effect of these regulations on our proposed
activities.
Additional Capital Needs: We will require additional capital
apart from the proceeds of this offering which may result in
additional dilution of our securities. We have no commitments
to obtain such capital at this time. There can be no assurance
that such capital will be available when needed or, if
available, that the terms for obtaining such funds will be
favorable to us. Our inability to raise such funds may delay
or prevent our making additional loans.
Discretion in Application of Proceeds: In order to accommodate
changing circumstances, the management may reallocate the
proceeds of this offering among the purposes specified in the
section of this prospectus entitled "Use of Proceeds." In
addition, a substantial portion of the proceeds of this
offering will be applied to sinking funds and working capital.
Accordingly, the management will have broad discretion in the
application of the proceeds of this offering.
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CONFLICTS OF INTEREST RISK
Officer's Conflict of Interest: Our current officers hold all
of the seats on the board of directors. Consequently, they
will be in a position to control their own compensation and to
approve affiliated transactions.
Affiliation Conflicts of Interest: The current officers and
directors of the Company are all associated with other firms
involved in a range of business activities. Because of these
affiliations and because these individuals will devote the
required amount of time to the affairs of the Company, there
are potential inherent conflicts of interest in their acting as
officers and directors of the Company.
Officer's Actions: The principals intend to act fairly and in
full compliance with their fiduciary obligations. There can be
no assurance that we would not, as a result of the conflicts of
interest described above, possibly enter into arrangements less
favorable than if we were dealing with unrelated persons.
RISK FACTORS RELATING TO THE COMPANY
Lack of Operating History: The Company was recently organized
and has no operations, revenues from operations, or assets
other than cash from the initial sale of shares of common stock
to officers, directors, and other persons.
The Report of the Independent Certified Public Accountants: Our
financial statement appearing herein contains some comments
with respect to the Company's ability to continue as a going
concern. We face all of the risks inherent in a new business
and no assurance can be given that we will prove successful.
Purchase Risk: The purchase of the bond offered must be
regarded as similar to placing funds at risk in a new or
"startup" venture with all of the expenses and difficulties to
which such ventures are subject.
Limited Funds Available for Operations: Even after completion
of this offering, our capital will be only sufficient to
conduct limited operations. The management believes that the
net proceeds of this offering will be sufficient to implement a
limited plan of operation. However our capitalization may be
such that, even following completion of this offering,
management may not be able to implement plans of operation.
Additional Financing May Be Required: Our ultimate success may
depend upon our ability to raise additional capital. There is
no assurance that funds will be available from any such source,
and if not available, we will need to limit our operations to
those that can be financed from the proceeds of this offering
Lack of Opportunity for Investors to Evaluate Borrower: The net
proceeds from this offering are allocated only to purpose under
the "Use of Proceeds." A significant portion of the proceeds
from this offering will be used as loans to businesses, which
will be selected by management. The management generally will
have unlimited discretion to search for and finance a business
opportunity, and bondholders of the Company normally will not
be given the opportunity to review, evaluate, or vote on the
loan or business opportunity before the consummation of such an
opportunity.
Loan Agreement: No agreements or preliminary understandings
have been reached for any specific loans. Investors in this
offering will be entrusting their funds to management who will
determine exclusively the viability of the borrowers or the
specific purposes to which funds will be allocated. This
offering is the type of offering that is sometimes referred to
as a "Blank Check."
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The proceeds from the offering may remain uninvested or
uncommitted for some period of time following the close of the
offering because of the inability of management to find a
suitable opportunity for financing.
Competition for Creditworthy Prospects: A large number of well-
established and well-financed entities, including venture
capital firms, which are active in the financing of businesses
that may be desirable candidates for us. Most competitors
have significantly greater financial resources, technical
expertise and managerial capabilities than we do; consequently,
we will be at a competitive disadvantage in identifying
possible borrowers and successfully completing a proposed
financing. Moreover, we will also compete with numerous
other small public companies.
Agreement for Financing of a Business: We were recently formed
for the purpose of lending and investing in business
opportunities believed by management to hold potential for
profit. Currently, we have no arrangement, agreement, or
understanding relating to any financing. While management has
identified some particular industries or specific businesses
within an industry for evaluation, there can be no assurance we
will be successful in identifying and evaluating loan
candidate's suitability in repayment of funds.
Limited Experience of Management: Our management has limited
experience in lending and business opportunities. We will be
dependent upon the general business experience of such persons
and the applicability of their backgrounds to any business
opportunity acquired by us. Our management may obtain
independent outside professionals to evaluate and appraise the
borrower and markets and to render evaluations and feasibility
studies relating to potential business opportunity.
Possible Change in Control and Management: An acquisition
involving the issuance of our stock may result in the current
shareholders losing controlling interest. Any such acquisition
may require our management to sell or transfer all or a portion
of our common stock, thereby losing control of the Company.
Members of Management Intend to Retain Their Shares in the
Company: Any potential business combination agreement may
require management to sell all or a portion of its shares as
part of the agreement. The price at which members of
management would sell their shares would be negotiated between
the parties.
Change in Control: Any resulting change in control of the
company, from either the issuance of additional shares or the
purchase by a buyer of management's stock, most likely will
result in removal of the present officers and directors. No
assurance can be given as to the experience or qualification of
such new management in the operation of the activities of this
Company or in the operation of the business acquired.
Limited Investigation: Our limited funds and the lack of full-
time management will likely make it impracticable to conduct a
complete and exhaustive investigation and analysis of a
business opportunity before the Company commits its capital or
other resources thereto. Therefore, management decisions will
likely be made without detailed feasibility studies,
independent analysis, market surveys.
Dependent on Limited information: This Company will be
particularly dependent in making decisions upon information
provided by the promoter, owner, sponsor or others associated
with the business opportunity this Company is seeking to
acquire or finance.
Possible Reliance on Unaudited Financial Statements: During
investigation stage, we generally will require audited
financial statements from prospective businesses. However, no
assurance can be given that audited financial statements will
be available to us. In such cases where audited financial
statements are unavailable, we will have to rely on information
received from management of a business which has not been
independently verified by outside auditors.
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If management is forced to rely on Unaudited information during
the preliminary stages. Management will also seek to determine
if such an audit can be conducted.
Leveraged Transaction: There is a possibility that an
acquisition of a business opportunity by us may be leveraged,
i.e., we may finance the purchase of the business opportunity
by borrowing on the assets of the business opportunity to be
acquired or financed, and perhaps on the projected future
revenues or profitability of the business opportunity. This
practice could increase our exposure to larger losses. A
business opportunity acquired through a leveraged transaction
will be profitable only if it generates enough revenues to
cover the related debt and expenses. Failure to make payments
on the debt incurred to finance the business opportunity could
result in the loss of a portion or all of the assets financed.
There can be no assurance that any business opportunity
financed through a leveraged transaction will generate
sufficient revenues to cover the related debt and expenses.
Escrow of Proceeds: Proceeds from the sale of bonds in this
offering will be placed in escrow during the term of this
offering (180 days from the date of this prospectus, which may
be extended an additional 180 days by mutual agreement by us
and the Sponsor). Investors will not be entitled to the
return of their funds during the escrow period. Accordingly,
investors may lose the use of their funds for up to 360 days.
If subscriptions for at least 50 percent units are not received
by the end of the 360-day period, the escrow funds will be
refunded promptly to the investors without deductions for
commissions or expenses and without interest.
No Assurance of Public Market: There is presently no market for
our bond units, common stock, or any securities, and there can
be no assurance that a market will develop or that investors
will be able to resell their units at the public offering price
without delay. In addition upon completion of this offering,
should a market for our bond units or securities develop, there
is no assurance that such a market will continue. In
addition, due to the price of our bonds, many securities
brokerage firms may not effect transactions and banks may not
accept them as collateral for loans.
No Dividends: We have not paid any dividends on our common
stock since incorporation, and at the present time do not
anticipate paying any dividends in the foreseeable future. If
our future operations are profitable, of which there can be no
assurance, any income received would probably be applied to the
operations. Any decision whether to pay dividends on the
common stock will depend upon the earnings, if any, our
financial requirements, and other factors. Investors who
anticipate earnings or immediate income from their investments
should refrain from purchasing our units. See "SINKING FUND"
I and II on page 9.
Public Will Bear Risk of Loss: The capital required by us to
commence operations and carry on our business is being sought
principally from the proceeds of this offering. Therefore, the
Investor will bear most of the risk of our operations until
such time as we attain profitability, if ever.
Future Dilution: Our Bond units offered here contain no
Warrants to purchase additional units of bonds, and investors
will not suffer dilution of their interest in the company
unless the company issues additional bonds which may cause
additional financial burden on our resources.
Limited Experience of Sponsor: The Sponsor has been in business
as a financial service company since April 1985. It has
completed no underwriting of securities and has participated in
no underwriting of securities. The sponsor is not committed
to purchase and sell any units; rather, its obligation is to
use its "best efforts" to sell our bond as an agent, or appoint
selling agents. There is no assurance that the Sponsor will
place all or any of the units, nor can it create a market in
the securities. See "Sponsor " on page 12.
Continued Control: Even if all 5,000 units of bond offered
hereby are sold, the present officers, directors, and
shareholders of this Company will own 100% of the outstanding
shares of this Company's common stock, without effecting
possible exercise of the investor's rights; thus, for all
practical purposes, the present officers and shareholders
should be able to continue to elect this Company's board of
directors and to control the Company.
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The Company's current shareholders may purchase additional
shares and accordingly, may control an even greater percentage
of this Company's authorized common stock.
For all of the reasons, set forth herein, above, and others,
these bonds involve a degree of risk. Any investor considering
an investment in the bonds offered is hereby advised to be
aware of these, and other, factors set forth in this
prospectus. Only Investors who can afford a long-term wait for
the return on their investment in the Company and have no
immediate need for a return on their investment should purchase
these securities. See "Sinking Fund" I and II on page 9.
USE OF PROCEEDS
The proceeds shall be used to create the Sinking Fund, pay
commissions, create an insurance indemnity, and fund business
loans to the Borrowers meeting the qualifications more fully
described in the "qualifications of borrowers" on page 10.
The funding allocation shall be as follows:
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Number Price Broker's Broker's Net Funds
of to Commission Commission to
Bond Public % Amount the Company
..............................................................................
Each 1 US$1,000.00 4.5% US$45.00 US$955.00
Total 5000 US$5,000,000.00 4.5% US$225,000.00 US$4,775,000.00
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DETAILED USE OF PROCEEDS
AMOUNT PERCENT %
Gross Proceed $5,000,000.00 100.00%
Fees and Commissions $ 225,000.00 04.50%
Insurance Guarantee $ 250,000.00 05.00%
Sinking Fund I (Principal Protection) $ 925,000.00 18.50%
Sinking Fund II (Interest Protection) $1,100,000.00 22.00%
Net to the Company $2,500,000.00 50.00%
Fees and Commissions:
An offering fee or commission are paid to sponsors, brokers,
dealers, and all professionals in connection with the sales and
marketing of these securities.
Insurance Guarantee:
The Insurance Guarantee ensure and guarantee annual interest
payment on the bond in case of non-payment by the Borrowers; it
will be created by the purchase of performance bonds or surety
bond from an "AAA" rated insurance company.
Sinking Fund I:
Will guarantee payment of Principal of these bonds at maturity.
This Sinking Fund is created by the purchase of U.S. Treasury
"Strips" issued by the United States Treasury, which upon
maturity will equal $5,000,000.00 and be utilized to pay off
the Bond principal.
Sinking Fund II:
Will guarantee payment of Interest on these bonds at maturity,
should we default on the interest payment to the bondholders.
This Sinking Fund is created by the purchase of U.S. Treasury
"Strips" issued by the United States Treasury or by a
"Guaranteed Fixed Annuity" or a "Surety Bond" issued by an
"AAA" rated Insurance Company. Upon maturity will equal
$8,437,500.00 and be utilized to pay off the interest due
bondholders, should a default on interest payment occur.
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BORROWER'S QUALIFICATIONS
Proceeds from the sales of the bond will be used to finance
eligible businesses meeting the following profile:
Profile of the Borrower: To be eligible for financing under
our bond-financing program, a project must meet certain minimum
requirements. We are not restricted to any particular type of
project, business, industry, or geographic area and funds are
intended for businesses needing capital ranging from
$250,000.00 and up.
In general a project or borrower must meet the following conditions:
- Must be a sound, viable project or business.
- Must be a business, sole proprietorship, partnership, or corporation.
- Must be in good standing with state or government of jurisdiction.
- Must be a going concern (startup may be considered).
- Must be able to meet interest payment requirements.
- Must have sufficient collateral consisting of land, building
and equipment.
- Must meet the applicable credit requirements of any bank or
financial institution.
- Must be a creditworthy borrower.
- Funds must be principally used for business or related projects.
- Must meet one of this type of loan request:
i. Acquisition Capital
ii. Expansion Capital
iii. Viable Project Capital
iii. Trade Finance
iv. Export & Import Finance
* Participants in the funding program will proceed as follows:
i. Submit an application provided by the Company with
$300.00 application fee.
ii. Submit a complete business / project plan with financial
statement and resume.
iii. Once a participant is approved an underwriting/loan
agreement will be issued.
iv. Once the loan agreement is signed, a closing date is set.
* The General loan terms are:
i. Loan amount: $250,000.00 minimum.
ii. Term: Up to 25 years
iii. Interest: 8.75% subject to change
iv. Industry preference: None
v. Geographic preference: None
vi. Equity: 15% to 25% equity in borrower's company
DETERMINATION OF OFFERING PRICE
Offering Price Determination: The offering price of the units
and its allocation among the "use of proceeds" have been
arbitrarily determined by us and bear no relation to our
assets, book value, net worth, earnings, actual results of
operation, or any other established investment criteria. Among
the factors we considered in determining such offering price
were our current financial condition, our cash requirement, the
general condition of the securities market, and an evaluation
of the prospects for our growth. The offering price set forth
on the cover page of this Prospectus should not be considered
an indication of our actual value.
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DILUTION
Dilution: As of the date of this prospectus we do not have any
securities in the market or any liabilities that will dilute
the value of this corporate bond: Our bond units offered here
contain no Warrants to purchase additional units of bonds, We
plan in the future to issue additional securities and notes and
these additional securities will not have any relations to
these bonds or cause a dilution in value.
SELLING SECURITY HOLDERS
Selling Security Holders: The bonds are not offered for the
account of any security holder and or management. The bonds are
offered for cash or their equivalent to the general public.
Cash Sales: All purchase of bonds shall be payable in United
States dollars or their equivalent, by cash, certified or
cashier's checks, or electronic transmission.
PLAN OF DISTRIBUTION
Plan of Distribution: We are the sole distributors of these
securities. We are responsible for the distribution of the
bonds to be sold under this public offering, and it will be at
our sole discretion to appoint other distributors.
We are responsible for conducting sales and marketing campaigns
for our bonds through different means and resources. To
facilitate the distribution of the bonds, there will be paid
advertisements published in various International media,
primarily in the United States, Europe, South America, Asia,
and Africa.
These bonds will be sold by institutions and individuals who
are licensed securities broker-dealers that are registered with
the securities and exchange commission. Also, it is
anticipated that the bonds will be sold through selected
members of the Association of International Bond Dealers.
Commission and Discounts: The distributor, Sponsor, and any
agent of the distributor, either jointly with its outside
distributors or individually, shall collect a 4.5% commission
on each bond sold.
LEGAL PROCEEDINGS
Litigation: The Company does not presently have any pending
litigation, and it is not a party to any litigation inside or
outside the jurisdiction of the United States of America.
DIRECTORS, EXECUTIVES OFFICERS, PROMOTER AND CONTROL PERSON
Management and Experience: The officers are professionals in
the fields of accounting, finance, management and the legal
profession. They are appointed for our convenience and may be
replaced after completion of the offering.
Our Executives officers are as follows: Boniface Suleman
Odiodio, David M. Swanner, Jr, and Mr. Jermyn Chan. Mr.
Boniface Suleman Odiodio holds the position of President and
Chairman of the Board of Directors. He was employed from 1986
to present as a General Partner and Chief Financial Officer for
Executive Business Service, a financial service company.
Mr. David M. Swanner, Jr., holds the position of Vice President
and Secretary of the Board of Directors. He was employed from
1986 to present as a General Partner and Marketing Director for
Executive Business Services, a financial service company.
Mr. Jermyn Chan holds the position of Vice President and
Treasurer of the Board of Directors. He was employed from 1986
to present as a General Manager for Upperace Enterprise, Inc.,
a financial service company.
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THE SPONSOR
Our Sponsor is Executive Business Services, which was organized
under the state laws of Texas on April 16th, 1987. Executive
Business Services original business activity was accounting,
asset management and financing activities. Executive Business
Services activities varied from commercial and trade financing
to financing of bonds and other obligations of governments and
their agencies. During the later part of the 1990's, placement
of corporate securities became an important part of their
business and under present management, has become one of their
principal activities. See "Interest of Named Experts and
Counsel" on page 14 and "Ownership interest" on page12
OWNERSHIP INTEREST
At present, the Compnay does not own shares of any other
company; however, upon the successful sale of our Corporate
Bonds, we will obtain a 15% to 25% ownership interest in or a
negotiated percentage of the net profits of the companies which
we finance.
SECURITIES OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
Title of Class Name and Address Amount Percent
Common Stock Executive Business Service 200,000,000 49.99%
P.O. Box 15155,
Fort Worth, TX 76119
Common Stock Upperace Enterprise, Inc. 200,000,000 49.99%
1B Lippo Leighton Centre,
103 Leighton Rd
Causeway Bay, Hong Kong
Common Stock Hobert T Douglas, Attorney 5,000 .02%
2529 E. Lancaster Ave.,
Ft Worth, TX 76103
Total 400,005,000 100%
DESCRIPTION OF SECURITIES
The Bonds: Corporate Bonds to the order of bearer in the
total amount of Five Million US Dollars (US$5,000,000.00) with
a maturity date of 25 years, from July 1st, 1999 to June 30th,
2024. The characteristics and denominations of the bonds are as
follows:
Five thousand (5,000) bonds of One Thousand Dollars
(US$1,000.00) each, payable at a floating interest rate of 0.5%
per year over the 25-year U.S. Treasury Yield rate for dollar
($) deposits, this rate to be fixed on the first Friday of June
of each year. The minimum interest rate, however, shall be six
and three-quarter percent (6.75%) per annum.
Sinking Fund I: Will guarantee payment of Principal of these
bonds at maturity. This Sinking Fund is created by the
purchase of U.S. Treasury "Strips" issued by the United States
Treasury, which at maturity will equal $5,000,000.00 and be
utilized to pay off the Bond principal.
Sinking Fund II: Will guarantee payment of Interest on these
bonds at maturity, should we default on the interest payment to
the bondholders. This Sinking Fund is created by the purchase
of U.S. Treasury "Strips" issued by the United States Treasury
or by a "Guaranteed Fixed Annuity" or a " Surety Bond" issued
by an "AAA" rated Insurance Company. Upon maturity will equal
$8,437,500.00 and be utilized to pay off the interest due
bondholders, should default on interest payment occur.
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<PAGE>
Secured promissory notes: Secured promissory notes bearing an
aggregate principal value of US$5,000,000.00 at 8.75% per year
from our borrowers will also guarantee payments of interest to
Bondholders. The borrower's interest payments will be collected
by the custodial agent and used to pay interest on these bonds
yearly.
ADDITIONAL INFORMATION FOR BOND OFFER
This offering shall be on a "best effort" and "50% minimum
subscription" basis. The "first closing" will take place after
a minimum of Fifty Percent (50%) or Two and half Million
Dollars (US$2,500,000.00) of bonds have been sold.
Presently, there is no procedure to change or modify the rights
of bondholders, nor is one contemplated for the future.
DETAILED DESCRIPTION OF THE RIGHTS AND OBLIGATIONS OF BONDHOLDERS
The bonds shall earn interest at the annual rate of 0.5% over
the 25-year U.S. Treasury Bond Yield rate for dollar deposits.
Such rate to be fixed on the FIRST Friday of June of each year.
The minimum interest rate, however, shall be six and three-
quarter percent (6.75%) per annum.
Interest shall be paid annually in arrears through a custodial
agent, by cashier's check sent via airmail to the most recent
address provided by the remitter of the interest coupons when
presented for payment. More specific instructions and payment
procedures will be provided with delivery of the bonds.
The bonds shall have duration of twenty-five (25) years and
shall be fully redeemed on the maturity date June 30th,,2024,
except that the Bondholders have the right to present the bonds
for cash redemption at anytime after June 30th, 2017, provided
that 180 days advance written notice is given to the Company.
Such redemption shall be made at one hundred percent (100%) of
the face value of each bond so redeemed. The Company expects
that sufficient cash or cash equivalents will be available so
that, when combined with the market value of the Sinking Fund
investments, a total redemption could be completed at the end
of twenty years without calling the underlying loan or
liquidating any of the Company's equity interests in the
borrowers.
There are no provisions to maintain a determined amount of
assets to secure these bonds, except for the Sinking Fund
described herein and the secured Promissory Notes issued to the
benefit of this Company by the borrowers.
As a guarantee for the principal payment of the bonds at their
maturity, this Company has authorized the Custodial Agent to
purchase US$5,000,000.00 face value of U.S. Treasury "Strips"
Bonds with a maturity no later than June 30th, 2024. The
Company has allocated funds sufficient to accomplish this
purchase providing that bonds representing at least fifty
percent (50%) of the issue, or two and half Million Dollars
(US$2,500,000.00), are sold.
As a guarantee for the interest payment of the bonds should a
default occur, the Company has authorized the Custodial Agent
to purchase US$8,437,500.00 face value of U.S. Treasury
"strips" Bonds or "AAA" rated Guaranteed Fixed Annuity or a
Surety Bond with a maturity date no later than June 30th, 2024.
The Company has allocated funds sufficient to accomplish this
purchase providing that bonds representing at least fifty
percent (50%) of the issue, or two and half Million Dollars
(US$2,500,000.00) are sold.
As guarantee for interest payment to bondholders, the Company
will obtain secured Promissory Notes from the borrowers of the
money originated from the sale of this bond. Said notes will
earn interest at an annual rate of 8.75% fixed. The borrowers
will pay the interest semi-annually in arrears to the Paying
Agent for benefit of this Company, who will then make interest
payments annually in arrears to the bondholders.
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<PAGE>
The Promissory Notes, which also may be executed in the form of
corporate debentures, are secured or guaranteed by
substantially all of the assets owned or to be obtained by the
borrowers. None of the debt instruments are individually or
personally guaranteed.
To date, there are no provisions to allow or restrict the
issuance of additional securities, additional indebtedness, or
modify the terms of issuance or other similar provisions.
Other than the Sinking Funds previously described, this company
does not plan to deposit or establish additional collateral
that will serve to guarantee these corporate bonds. In fact,
this company has dedicated substantially all of its assets to
guarantee payment of principal and interest to the holders of
these securities.
Bondholders may assign or transfer their rights and interest
under this bond. The company takes no responsibility for the
validity of any assignment; bondholders must make a change of
ownership rights in writing and send it to our home office.
The change will be effective on the date the change was made,
although the company is not bound by a change until the date
recorded.
Interest shall be due and payable on the 30th of June of each
year until maturity date (June 30th, 2024).
AGENTS
The Custodial, Transfer and Registrar Agent: We will initially
act as custodial, transfer and registrar agent for these bonds
and reserve the right to appoint a custodial, transfer and
registrar agent at our sole discretion,
The Paying Agent: We will initially act as Paying Agent for
the bonds and reserve the right to appoint a paying agent at
our sole discretion.
INTEREST OF NAMED EXPERTS AND COUNSEL
Interests of Named parties and Counsel: Our Sponsor, Executive
Business Services (EBS), which is a partnership owned by Mr.
Boniface Suleman Odiodio who holds the position of President
and Chairman of the Board of Directors of the Company and Mr.
David M. Swanner Jr., who holds the position of Vice President
and Secretary of the Board of Directors of the Company, own
49.99% (200,000,000 shares) of the outstanding common equity
and have no ownership interest in these securities.
Hobert T. Douglas, our legal counsel, owns .02% (5,000 shares)
of our outstanding common equity and has no ownership interest
in these securities.
Mr. Jermyn Chan and Upperace Enterprise Inc. owns' 49.99%
(200,000,000 shares) of the outstanding common equity of the
company and have no ownership interest in these securities.
The Accountants, Auditor, Indenture Trustee, Escrow Agent ,
Financial Advisor and Bankers have no ownership interest in
any of the debt or equity securities of this company.
DISCLOSURE OF COMMISSION POSITION OF INDEMNIFICATION FOR SECURITIES
ACT LIABILITIES
Indemnification: The Company under the Articles of
Incorporation, indemnifies "the shareholders, directors,
management and employees of all legal acts performed on behalf
of the corporation in good faith." In the By-laws, the Company
further indemnifies to the fullest extent of the law all the
shareholders, directors, management and employees to the extent
they relied on opinion of counsel and Insofar as,
indemnification for liabilities arising under the Securities
Act of 1933 may be permitted. This company has been informed
that, in the opinion of the Securities and Exchange Commission,
the indemnification is against public policy as expressed in
the Act and is therefore unenforceable.
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<PAGE>
ORGANIZATION WITHIN LAST FIVE YEARS
This Company has been created solely for the purpose of the
issuance of these bond offerings and, accordingly, has been in
existence less than five years.
DESCRIPTION OF BUSINESS
Principal Products: Our only product at this time are
financial services. We are in the financing business and we
intend to obtain our clients from the general business market
by advertising and marketing of our specialized lending
services.
The financing is long term interest only loans to qualified
borrowers, with strong cash flow that can meet the interest
payment burden over the term of the loan.
The primary business purpose and goal is to develop and engage
in long-term lendering in and outside the United States.
We, along with qualified consultants will locate qualified
borrowers; in order to be successful in a competitive
environment, we will take the following actions:
- Establish a strong administrative base
- Obtain expertise in the lending industry
- Possess and implement a strategic marketing plan
- Offer marketable products
- Maintain adequate financial resources
- Comply with all legal regulations
Our management has experience in accounting and finance, which
will provide this company a greater degree of stability in its
proposed operations.
Marketing Capabilities: Our target market can be characterized
as limited, demanding and global. Under the best conditions,
investors and lenders are invariably hindered by, among other
things, regulatory controls and reporting and foreign exchange
requirements. With substantial experience in these matters, our
management intends to develop and implement strategic marketing
plans designed to promote our services to potential clients
worldwide.
Financial Resources: This company seeks to achieve and maintain
a constant reserve of working capital for operation; to
successfully conduct our proposed operation, liquidity and the
ability to sustain overhead expenses is essential. We intend
to generate working capital through the creation of multiple
profit centers within our operations.
Sources of Revenue: We will receive over 95% of our revenue
from borrower interest payments and bond issuance sales
commissions through these bond offerings; therefore we will
seek the best possible clients to finance.
Subsidiaries: The Company does not own a percentage in any
subsidiary, and we are not a subsidiary of any other company.
We have no percentage of voting class shares in any company.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF PLAN OF OPERATIONS
We are recently organized and have no operations, revenues from
operations, or assets other than cash from the initial sale of
shares of common stock to officers, directors, and other
persons. We face all of the risks inherent in a new business
and no assurance can be given that our plans will prove
successful. An investment in these bonds must be regarded as
the placing of funds at risk in a new or "startup" venture
with all of the expenses and difficulties to which such
ventures are subject.
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<PAGE>
DESCRIPTION OF PROPERTY
Location of Asset and Encumbrances: All our assets are located
in Fort Worth, Texas, USA and are listed in the financial
statements section.
MARKET FOR SECURITIES AND RELATED SECURITIES MATTER
We are not presently listed on any exchange and there is no
market for our securities. There can be no assurance that an
active trading market for our bonds will be developed or
maintained following this offering, or that the bonds purchased
by investors in this offering may be resold at their original
price or any other price. If no market develops, the bonds will
be illiquid and funds will not be available to the investor.
EXECUTIVE COMPENSATION
We have agreed to pay the following executives these salaries
for their services to the company
Mr. Boniface Suleman Odiodio $50,000.00 per year as the President
Mr. David M. Swanner, Jr. $50,000.00 per year as Vice President
Mr. Jermyn Chan $50,000.00 per year as Vice President
CHANGES IN AND DISAGREEMENT WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
We are not in disagreement with the accountant on accounting
and financial disclosure per the financial statement in this
prospectus.
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16
<PAGE>
INDEPENDENT AUDITOR'S REPORT
Board of Directors and Stockholders
Intercontinental Capital & Investment Fund, Inc.
Fort Worth, TX
We have audited the accompanying balance sheet of
Intercontinental Capital & Investment Fund, Inc., (a
development stage company) as of June 30, 1999, and the
related statements of operations, stockholders' deficit and
cash flows for the period from inception (September 29,
1998) to June 30, 1999. These financial statements are the
responsibility of the Company's management. Our
responsibility is to express an opinion on these financial
statements based on our audit,
We conducted our audit in accordance with generally
accepted auditing standards, Those standards require that
we plan and perform the audit to obtain reasonable
assurance about whether the financial statements are free
of material misstatement. An audit includes examining, on a
test basis, evidence supporting the amounts and disclosures
in the financial statements. An audit also includes
assessing the accounting principles used and significant
estimates made by management, as well as evaluating the
overall financial statement presentation, We believe that
our audit provides a reasonable basis for our opinion.
In our opinion, the financial statements referred to above
present fairly, in all material respects, the financial
position of Intercontinental Capital & Investment Fund,
Inc. as of June 30, 1999, and the results of its operations
and its cash flows for the period from inception (September
29, 1998) to June 30, 1999, in conformity with generally
accepted accounting principles.
The accompanying financial statements have been prepared
assuming that the Company will continue as a going concern.
As discussed in Note 2 to the financial statements, the
Company has suffered losses since inception, its current
liabilities exceed its current assets, and it has a net
capital deficiency that raises substantial doubt about its
ability to continue as a going concern. Management's plans
in regard to these matters are also described in Note 2.
The financial statements do not include any adjustments
that might result from the outcome of this uncertainty.
/s/ Weaver and Tidwell, L.L.P.
WEAVER AND TIDWELL, L.L.P.
Fort Worth, Texas
July 26, 1999
3275
17
<PAGE>
INTERCONTINENTAL CAPITAL &, INVESTMENT FUND, INC.
(A Development Stage Company)
BALANCE SHEET
JUNE 30,1999
ASSETS
CURRENT ASSETS
Cash $ 109
Total current assets $ 109
TOTAL ASSETS $ 109
LIABILITIES AND STOCKHOLDERS' DEFICIT
CURRENT LIABILITIES
Accounts payable and accrued expenses $ 5,538
Customer deposit $ 5,450
Total current liabilities $ 10,988
STOCKHOLDERS' DEFICIT
Preferred stock, no par value,
100,000,000 shares of Class A and
100,000,000 shares of Class B authorized,
none issued
Common stock, no par value,
500,000,000 shares authorized,
400,005,000 shares issued and outstanding 50,000
Deficit accumulated during the development stage (38,279)
Deferred consulting (22,600)
(10,879)
TOTAL LIABILITIES AND STOCKHOLDERS' DEFICIT $ 109
The Notes to Financial Statements,
Is an Integral part of this statement,
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<PAGE>
INTERCONTINENTAL CAPITAL & INVESTMENT FUND, INC.
(A Development Stage Company)
STATEMENT OF OPERATIONS
PERIOD FROM INCEPTION (SEPTEMBER 29,1998),
TO JUNE 30, 1999
REVENUE $ -
OPERATING EXPENSES
Legal, professional and consulting fees 38,138
General and administrative 146
Total operating expenses 38,284
Operating loss 38,284
OTHER INCOME (EXPENSE)
Interest income 5
Net loss ($ 38,279)
Net loss per share ($ 0.00)
Weighted average number of shares outstanding 400,002,564
The Notes to Financial Statements are
an Integral part of this statement.
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<PAGE>
INTERCONTINENTAL CAPITAL & INVESTMENT FUND, INC.
(A Development Stage Company)
STATEMENT OF STOCKHOLDERS' DEFICIT
PERIOD FROM INCEPTION (SEPTEMBER 29, 1998)
TO JUNE 30,1999
BALANCE,
SEPTEMBER 29, - $ - $ - $ -
1998 (Inception)
Issuance of common
Stock for services 200,005,000 40,400 - (40,400)
Issuance of common
Stock for cash 200,000,000 9,600 - -
Recognition of services
Performed for stock - - - 17,800
Net loss - - (38,279) -
BALANCE,
JUNE 30,1999 400,005,000 $ 50,000 ($38,279) ($ 22,600)
The Notes to Financial Statements
an Integral part of this statement
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<PAGE>
INTERCONTINENTAL CAPITAL & INVESTMENT FUND, INC.
(A Development Stage Company)
STATEMENT OF CASH FLOWS
PERIOD FROM INCEPTION (SEPTEMBER 29,1998)
TO JUNE 30, 1999
CASH FLOWS FROM OPERATING ACTIVITIES
Net loss ($ 38,279)
Adjustments to reconcile net loss to
net cash used in operating activities
Recognition of services performed for stock 17,800
Changes in assets and liabilities
Accounts receivable escrow (2,050)
Customer deposits 5,450
Accounts payable and accruals 5,538
Net cash used in operating activities (9,491)
CASH FLOWS FROM FINANCING ACTIVITIES
Sale of common stock 9,600
Net cash provided by financing activities 9,600
Net increase in cash 109
CASH, BEGINNING OF PERIOD -
CASH, END OF PERIOD $ 109
SUPPLEMENTAL DISCLOSURE OF NONCASH
INVESTING AND FINANCING ACTIVITIES
Noncash investing and financing activities -for the period from
inception (September 29, 1998) to June 30, 1999 includes
200,005,000 shares issued for consulting and legal services to
be performed valued at $40,400.
The Notes to Financial Statements are
an Integral part of this statement.
21
<PAGE>
INTERCONTINENTAL CAPITAL & INVESTMENT FUND, INC.
(A Development Stage Company)
NOTES TO FINANCIAL STATEMENTS
NOTE 1. SIGNIFICANT ACCOUNTING POLICIES
Business Activity
The Company has been in the development stage since its
formation on September 29, 1998. The Company plans to
provide. commercial financial services, currently, the
Company is dependent on its founders and major
stockholders for working capital.
Advertising
Advertising costs are expensed as incurred.
Cash Flows Presentation
For purposes of the statements of cash flows, all
highly liquid investments with initial maturities of
ninety days or less from the date of purchase are
considered to be cash equivalents.
Income Recognition
Interest income from finance receivables will be
recognized using the 'interest (actuarial) method.
Accrual of interest income on finance receivables will
be suspended when the collectibility of interest or
principal of the loan is considered doubtful, The
accrual will be resumed when the loan becomes
contractually current, and past due interest income
will be recognized at that time.
Use of Estimates
The preparation of financial statements in conformity
with generally accepted accounting principles requires
management to make estimates and assumptions that
affect the reported amounts of assets and liabilities
and disclosure of contingent assets and liabilities at
the date of the financial statements and the reported
amounts of revenues and expenses during the reporting
period. Actual results could differ from those
estimates.
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<PAGE>
NOTE 1. SIGNIFICANT ACCOUNTING POLICIES - continued
New Accounting Pronouncements
The Financial Accounting Standards Board (FASB) has
issued Financial Accounting Standards (SFAS) No. 130,
Reporting Comprehensive Income. This statement requires
an enterprise to display total comprehensive income
(total nonowner changes in equity) in a full set of
financial statements. Currently the Company has no
items to be reported as "other comprehensive income".
In addition, FASB has issued SFAS No. 131, Disclosures
about Segments of an Enterprise and Related
Information, This statement requires a "management
approach" as opposed to an industry approach in
defining operations to be shown as separate segments.
Currently, the Company plans to operate in one segment.
The Company has adopted SFAS No. 130 and No. 131 for
its fiscal year beginning September 29, 1998. There was
no significant impact in financial statement
presentation as a result of implementing these new
accounting standards.
Loss Per Common Share
The basic loss per common share has been computed by
dividing the net loss by the weighted average number of
shares of common stock outstanding throughout the
period. Diluted earnings per share are not presented
because the company has issued no dilutive potential
common shares.
NOTE 2. BASIS OF PRESENTATION
The accompanying financial statements have been
prepared on a going concern basis, which contemplates
realization of assets and liquidation of liabilities in
the ordinary course of business. Since the Company is
in the development stage, it has limited capital
resources, no revenue and has incurred losses from
operations since inception. The appropriateness of
using the going concern basis is dependent upon the
Company's ability to obtain additional financing or
equity capital and, ultimately, to achieve profitable
operations. The uncertainty of these conditions raises
substantial doubt about its ability to continue as a
going concern, The financial statements do not include
any adjustments that might result from the outcome of
this uncertainty.
The Company plans to raise additional funds through the
issuance of floating rate bonds. A portion of the funds
to be raised will be used to provide commercial
financial services and for working capital. The Company
believes that these actions will enable it to carry out
its business plan and ultimately to achieve profitable
operations.
NOTE 3. RELATED PARTY TRANSACTION
The Company has issued stock pursuant to various
consulting agreements. Deferred consulting costs, which
are valued based on the estimate of services to be
provided, are recorded as a reduction of stockholders
equity and will be amortized over the life of the
agreements or as fees for services are incurred.
NOTE 4. INCOME TAXES
Deferred income tax assets and liabilities are computed
for differences between financial statement and tax
basis of assets and liabilities that will result in
taxable or deductible amounts in the future based on
enacted tax laws and rates applicable to the period in
which the differences are expected to affect taxable
income. Valuation allowances are established when
necessary to, reduce deferred tax assets to the amount
expected to be realized. Income tax expense is the tax
payable or refundable for the period plus or minus the
change during the period in deferred tax assets and
liabilities, At June 30, 1999, there was no current or
deferred tax expense,
Deferred tax asset and liability balances are as
follows:
Deferred tax asset $5,742
Deferred tax liability -
Net deferred tax asset 5,742
Valuation allowance (5,742)
$ -
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<PAGE>
NOTE 4. INCOME TAXES - continued
The net change in the valuation allowance for the period from
inception (September 29, 1998) to June 30, 1999 was $5,742.
The deferred tax asset results from a net operating loss carryover.
The Company has a net operating loss carryover of approximately
$38,000 available to offset future income for income tax
reporting purposes, which will ultimately expire in 2019 if not
previously utilized.
NOTE 5. YEAR 2000 ISSUES
The Company has completed its remediation plan to resolve the
potential impact of the Year 2000 on the ability of its
computerized information systems to accurately process
information that may be date sensitive. The Company believes
its computerized information systems are Year 2000 ready.
However, because of the unprecedented nature of the Year 2000
issue, the success of its remediation efforts will not be
determinable until the year 2000 and thereafter. Therefore,
management cannot assure that the Company or the parties with
whom it does business will be Year 2000 ready.
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24
<PAGE>
GENERAL INFROMATION
Questions and other Communications:
Any questions about these bonds should be directed to
Intercontinental Capital & Investment Fund Inc. home office:
P.O. Box 15155, Fort Worth, TX 76119 (817) 534-7305.
Reports:
We will mail to the bondholder any report and communication
required by any applicable law or regulation; Investors
should therefore give us prompt written notice of any address
change.
SUPPLEMENTAL EXHIBITS INDEX
The following exhibits are not furnished as a part of this
Prospectus; however copies of the exhibits will be made
available to perspective purchasers, upon written request, at
a reasonable time prior to purchase.
Exhibit 1. Underwriting Agreement see Exhibit D
Exhibit 2. Plan of acquisition, reorganization, arrangement,
liquidation or succession
Exhibit 3. Instrument defining the rights of security holders
Exhibit 4. Opinion re legality
Exhibit 5. Opinion re tax matters
Exhibit 6. Material contracts (Escrow Agreement and Trust Agreement)
Exhibit 7. Consent of experts and counsel (Auditor consent Letter)
Exhibit 8. Power of attorney
Exhibit 9. Statement of eligibility of trustee
Exhibit 10. Invitation for competitive bids
Other Additional Exhibit
Exhibit A Other Financial Data and projections Articles of Incorporation
Exhibit B Other General information
Exhibit C Articles of Incorporation
Exhibit D Directors meeting to issue the Corporate Bond Series 1 Floating
rate 1999 - 2024
Exhibit E Resolution to appoint The Indenture Trustee, Custodial, Transfer,
Registrar, Paying, Conversion and Escrow Agent
Appendix
Appendix A Indenture Agreement and accompanying documents
25
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SUBSCRIPTION AGREEMENT
IMPORTANT: PLEASE FILL OUT APPLICATION COMPLETELY.
TYPE OR USES A BLACK BALLPOINT PEN. PRESS HARD.
INVESTOR: To purchase units of the currently effective
Corporate Bond, you must complete and sign this INSTRUCTIONS
subscription agreement and deliver it to your security broker
together with your check. YOUR CHECK SHOULD BE MADE PAYABLE
TO: INTERCONTINENTAL CAPITAL & INVESTMENT FUND INC. (ISSUER),
in order to invest, it is necessary that all items on the
subscription agreement be completed.
NAME _______________________________________________________________
NAME _______________________________________________________________
ADDRESS_____________________________________________________________
CITY_______________________STATE_______________COUNTRY______________
TAX ID OR SS# _________________________________
1. INVESTMENT: Insert the number of units to be purchased and
multiply the dollar amount of the investment [$1,000.00 x
[______________ ] no. of Units].
2. OWNERSHIP: Check the appropriate box indicating the manner
in which the title is to be held. Please note that the box
checked must be consistent with the number of signatures
indicated in Section 6. (See Instruction 6.) For a
partnership, corporation, custodianship, or trust, the box
checked must be consistent with the legal title
(registration).
Participants in an IRA or unincorporated plan should note that
such a purchase does not in itself create the plan. You must
create the plan through a bonafide custodian or trustee who
will execute the subscription agreement.
3. REGISTERED OWNER: Please type or print the exact name
(registration) that the investor desires on the account. If
the investor is an individual, partnership, or corporation,
please include in this space the complete name and title in
which the investment is to be held. If the investor is a
trust, such as an IRA or unincorporated plan, please include
the name and address of the trustee and the trust name.
For a trust or custodian investment including an IRA,
unincorporated plan, or other such trusts or custodianships,
monthly distribution checks and investment correspondence will
normally be sent to the trustee or custodian. For the plan
participant to receive correspondence at a home or other
address, place that address on the mailing address line in
Section 5 (Additional Recipient). All investors and/or plan
participants must complete the spaces provided for Social
Security numbers. A trust, corporation, partnership,
custodian, and/or estate must additionally furnish a Tax
Identification Number.
4. ANNUAL CHECKS: After impounds are met, INTERCONTINENTAL
CAPITAL & INVESTMENT FUND INC. will commence annual
distributions of cash available for investors. Please insert
"same" if the annual checks are to be mailed to the name and
address of the registered owner given above. Please insert the
name of the financial institution and the account number if
checks are to be sent to a bank or savings and loan or other
financial institution or destination.
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<PAGE>
5. ADDITIONAL RECIPIENT: All periodic reports and financial
statements will be sent to the registered owner at the address
given above. If the investor wishes additional reports and
financial statements sent to anyone other than the registered
owner, or to an address other than the registered owner's, or
if the ownership is under the Uniform Gift to Minors Act, or
is a fiduciary, insert the name and address of the additional
person to receive reports and financial statements. As an
example, a participant in a corporate pension plan directed
account or a beneficiary under a trust agreement might wish to
receive reports and financial statements at his home address.
6. SIGNATURE: Complete the information requested and sign in
the space(s) provided. If title is to be held as joint tenancy
or tenants in common, at least two signatures are required. In
the case of community property, only one investor signature is
required. If you have questions regarding the completion of
this form, please call your registered representative.
7. BROKER/DEALER REGISTERED REPRESENTATIVE It is necessary
that all items be fully completed. Include registered
representative's name and branch office address. Indicate
broker dealer home office address. The registered
representative must sign where indicated in order for the
application to be accepted. In addition registered
representative's telephone number must also be provided.
8. COPY DISTRIBUTION: To the Issuer
9. BY MAIL TO ISSUER:
INTERCONTINENTAL CAPITAL & INVESTMENT FUND INC. ESCROW ACCOUNT
P.O. Box 15155
Fort Worth, TX 76119, USA
BY MAIL TO ESCROW AGENT:
U.S. Trust Company Texas N.A.
2001 Ross Avnue, Suite 2700
Dallas, TX 75201
214 754-1255
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<PAGE>
SUBSCRIPTION AGREEMENT
Signature Page and Power of Attorney
The undersigned desires to become a Bondholder in this issue
of INTERCONTINENTAL CAPITAL & INVESTMENT FUND INC. ("The
Issuer") and to purchase the number of Bond units ("Units")
appearing at the end of this subscription agreement in
accordance with the terms and conditions of the Prospectus of
the Issuer. In connection therewith, the undersigned hereby
represents, warrants, and agrees as follows:
1. SUBSCRIPTION The undersigned agrees to purchase the number
of Units set forth above his signature at the end of this
subscription, and hereby tenders the amount required to
purchase such Units ($1,000.00 per Unit; minimum subscription:
see the Prospectus).
2. ADOPTION The undersigned hereby specifically adopts each
and every provision of the agreement.
3. REPRESENTATION
(a) the undersigned is subscribing for
Units solely for his own account or for the account indicated
below and not for the benefit or account of any other person
or entity.
(b) The undersigned is aware that (i) this subscription may be
rejected in whole or in part by INTERCONTINENTAL CAPITAL &
INVESTMENT FUND INC. in its sole discretion and (ii) in any
event this subscription will be returned to the undersigned
(with interest as described in the Prospectus), if
subscriptions for at least the minimum number of Units
specified in the Prospectus are not received prior to
termination of the offering.
(c) The undersigned is an individual, person, entity, or
fiduciary, which meets the suitability standards set forth in
the Prospectus under " The Risk Factors."
NOTHING HEREIN SHALL BE DEEMED A WAIVER OF ANY RIGHTS OF
ACTION THAT THE UNDERSIGNED MAY HAVE UNDER ANY FEDERAL OR
STATE SECURITIES LAW.
4. SPECIAL POWER The undersigned hereby makes, constitutes,
and appoints The Issuer, a Texas Corporation, with full power
of substitution, his true and lawful attorney, for him and in
his name, place, and stead for his use and benefit in
accordance with this agreement
IT IS UNLAWFUL TO CONSUMMATE A SALE OR TRANSFER OF THIS
SECURITY, OR ANY INTEREST THEREIN, OR TO RECEIVE ANY
CONSIDERATION THEREFOR, WITHOUT THE PRIOR WRITTEN CONSENT OF
THE SEC, EXCEPT AS PERMITTED IN THE COMMISSION'S RULES.
The following requirements have been established for the
various forms of registration. Accordingly, complete
subscription agreements and such supporting material as may be
necessary, must be provided.
__________________________________________________________
THE INVESTOR DATE
__________________________________________________________
THE INVESTOR DATE
28
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TYPE OF OWNERSHIP
Please Circle One
1. INDIVIDUAL: One signature required.
2. JOINT TENANTS WITH RIGHT OF SURVIVORSHIP: Both parties must sign.
3. TENANTS IN COMMON: Both parties must sign.
4. COMMUNITY PROPERTY: Only one investor signature is required.
5. TRUST: The trustee signs the Subscription Agreement.
Provide the name of the trust, the name of the trustee, and
the name of the beneficiary.
6. PARTNERSHIP: Identify whether the entity is a general or
limited partnership. The general partners must be identified
and their signatures obtained on the order. In the case of an
investment by a general partnership, all partners must sign
(unless a "managing partner" has been designated for the
partnership. In which case he may sign on behalf of the
partnership if a certified copy of the document granting him
authority to invest on behalf of the partnership is
submitted).
7. CORPORATION: The Subscription Agreement must be accompanied
by (1) a certified copy of the resolution of the Board of
Directors designating the officer(s) of the corporation
authorized to sign on behalf of the corporation, and (2) a
certified copy of the Board's resolution authorizing the
investment.
8. IRA: Requires signature of an authorized signer, i.e. an
officer of the bank, trust company, or other fiduciary. The
address of the trustee must be provided in order for him or
her to receive checks and other pertinent information
regarding the investment.
9. SEP: The custodian signs the Subscription Agreement.
10. CORPORATE PENSION PLAN PROFIT SHARING PLAN: The custodian
signs the Subscription Agreement.
11. UNIFORM GIFT TRANSFER TO MINORS ACT (UGMA): The required
signature is that of the custodian, not of the parent (unless
the parent has been designated as the custodian). Only one
child is permitted in each investment under the Uniform Gift
to Minors Act. In addition, designate the state under which
UGMA is being made.
12. UNINCORPORATED PLAN (KEOGH): Same rules as those applicable to IRA's.
29
<PAGE>
NO PERSON IS AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS. ANY
INFORMATION OR REPRESENTATION NOT CONTAINED HEREIN MUST NOT BE
RELIED UPON AS HAVING BEEN AUTHORIZED BY THIS COMPANY. THIS
PROSPECTUS DOES NOT CONSTITUTE AN OFFER OF ANY SECURITIES
OTHER THAN THE REGISTERED BONDS TO WHICH IT RELATES OR AN
OFFER TO ANY PERSON IN ANY JURISDICTION WHERE SUCH OFFER WOULD
BE UNLAWFUL. NEITHER THE DELIVER OF THIS PROSPECTUS, NOR ANY
SALE MADE HEREUNDER, SHALL, UNDER ANY CIRCUMSTANCES, CREATE
ANY IMPLICATION THAT THERE BE NO CHANGE IN THE AFFAIRS OF THE
COMPANY SINCE THE DATE HEREOF.
Intercontinental Capital & Investment Fund Inc.
$5,000,000.00
5000 units
Offering Price $1,000.00 per unit
Corporate Bond Series 1, Floating Rate Notes 1999 -2024
------------------
PROSPECTUS
------------------
August 30th, 1999
Intercontinental Capital & Investment Fund Inc.
P.O. Box 15155
Fort Worth, Texas 76119 USA
817-534-7305
Fax 817-534-7803
END OF PROSPECTUS
30
<PAGE>
PART II --INFORMATION NOT REQUIRED IN PROSPECTUS
Indemnification of Directors and Officers
The Company under the Articles of Incorporation, Article nine,
which states "the corporation indemnity the shareholders,
directors, management and employees of all legal act performed
on behalf of the corporation in good faith". See Exhibit
Articles of Incorporation. The company further indemnifies
to the fullest extent of the law all the shareholders,
directors, management and employees to the extent they relied
on opinion of counsel. Insofar as indemnification for
liabilities arising under the Securities Act of 1933 may be
permitted, it has been informed that in the opinion of the
Securities and Exchange Commission the indemnification is
against public policy as expressed in the Act and is therefore
unenforceable.
No statute, charter provision, by-laws, contract or other
arrangement that insures or indemnifies any controlling
person, director or officer of the Company in their capacity
in unless as the statement made above.
Other Expenses of Issuance and Distribution
ISSUANCE EXPENSES
A) INVESTIGATION EXPENSES:
The Issuer has paid these expenses to several research
companies who have provided information on the economic and
political situation in the United States of America, European
Community. And Asia and general market trends Total = $3,500.00
B) REGISTRATION EXPENSES:
These are expenses incurred in the preparation of documents
that must be presented to the Securities and Exchange
Commission (SEC) and include registration tax, notaries fees,
sealed paper, stamps, authentication, courier, etc.
Total = $ 5,404.95
C) LEGAL EXPENSES:
These are expenses paid by the Issuer to a law firm for
professional fees related to the Issuer's incorporation and
registration, amendments to its charter, consultations,
opinions and fees for registering the bonds offering with the
Securities and Exchange Commission (SEC).
Total = $ 28,500.00
D) PRINTING EXPENSES:
The Issuer in printing a specified number of information
prospectuses to be distributed among prospective investors
incurs these expenses. Total = $ 1,500.00
E) PUBLICITY EXPENSE:
These are expenses incurred by the Issuer for advertisements
placed in various means of information, such as newspapers,
magazines, mail, etc. Total = $ 5,000.00
F) ACCOUNTING EXPENSES:
The Issuer paid these expenses to a firm of certified public
accountants for the analysis of the financial statements of
Participants and for the preparation of financial statements
and other documents related to the bonds offering.
Total = $ 4,750.00
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<PAGE>
G) TRAVEL EXPENSES:
These expenses are incurred by the Issuer and include airfare,
hotels, lodging, communications, transportation of documents,
etc. Total = $ 2,500.00
H) OTHER EXPENSES:
In addition to the expenses identified above, the Issuer has
incurred, and will continue to incur, substantial additional
expenses for subsidizing the distributors' sales efforts.
Total = $ 146.20
I) ADMINISTRATIVE EXPENSE: These expenses are incurred by the
Issuer and include office, telephone and staffing.
Total = $ 2,025.00
J) TOTAL EXPENSES:
All expenses incurred by the Issuer in registration of the
bonds offering amount to:
GRAND TOTAL = $ 53,326.15
Recent Sales of Unregistered Securities
Except the common equity of the company sold to Executive
Business Service (200,000,000) shares and Upperace
Enterprise, Inc. (200,000,000) shares and Hobert T. Douglas
(5,000) share at the formation of the company, no recent sale
of any of the companies securities has be made.
THE FOLLOWING HAVE BE INCORPORATED AS EXHIBITS:
Exhibit 1. Underwriting Agreement see Exhibit D
Exhibit 2. Plan of acquisition, reorganization, arrangement, liquidation
or succession
Exhibit 3. Instrument defining the rights of security holders
Exhibit 4. Opinion re legality
Exhibit 5. Opinion re tax matters
Exhibit 6. Material Contracts
Exhibit 7. Consent of experts and counsel
Exhibit 8. Power of attorney
Exhibit 9. Statement of eligibility of trustee
Exhibit 10. Invitation for competitive bids
Other Additional Exhibit
Exhibit A Other Financial Data and projections
Exhibit B Other General information
Exhibit C Articles of Incorporation
Exhibit D Directors meeting to issue the Corporate Bond Series 1
Floating Rate 1999 - 2024
Exhibit E Resolution to appoint The Indenture Trustee Custodial
Agent, Transfer Agent, Registrar Agent, Paying Agent,
Conversion Agent and Escrow Agent for Bond Series 1
Appendix
Appendix A Indenture Agreement and accompanying documents
EXHIBITS BEGIN ON FOLLOWING PAGE
32
<PAGE>
Exhibit 1.
Underwriting Agreement:
NOT APPLICABLE
This Bond was Internally Underwritten, therefore no
underwriting agreement is required.
Exhibit 2.
Plan of acquisition, reorganization, arrangement, liquidation
or succession. See "use of proceed". The Company has no plan
of acquisition of any type.
(This rest of this page has been left blank intentionally)
33
<PAGE>
Exhibit 3. Instrument defining the rights of security holders
Front of instrument
INTERCONTINENTAL CAPITAL & INVESTMENT FUND INC
CORPORATE BOND SERIES 1, FLOATING RATE NOTES 1999 - 2024
BOND NUMBER: 0000
PRINCIPAL AMOUNT: $1,000.00
INTEREST: 0.50% Over US Treasury yield for
same year maturity MINIMUM INTEREST: 6.75%
ISSUE DATE: July 1st, 1999
MATURITY DATE: June 30th, 2024
PRINCIPAL GUARANTEE: 100% Face Value
INTEREST GUARANTEE: 100% Face Value
For value received, we the undersigned Intercontinental Capital &
Investment Fund Inc., hereby irrevocably and unconditional without
protest or notification promise to pay against this promissory notes
to the order of the bearer or the holder thereof at maturity the sum
of $1,000.00, upon presentation and surrender of this note at the
office of Intercontinental Capital & Investment Fund Inc. or the
paying agent. Such payment shall be made by cash or check in US
Dollars, without set-off and free and clear of any deduction or
charges, fees, deduction of withholding of any nature now or
hereafter imposed, levied or assessed by any government, political
subdivision or authority thereof or therein.
The interest shall be due and payable on the 30th of June each
annually until maturity date at the rate of 0.50% over the US
Treasury yield rate for the same year maturity, in any even not less
that 6.75% per year.
The interest is payable upon presentation and surrender of the
interest coupon at the office of Intercontinental Capital &
Investment Fund Inc. of the paying agent. Such payment shall be made
by cash or check in US Dollars, without set-off and free and clear
of any deduction or charges, fees, deduction of withholding of any
nature now or hereafter imposed, levied or assessed by any
government, political subdivision or authority thereof or therein.
This note is guaranteed 100% principal and interest for the face
Value by U.S. Treasury "Strip" Bond.
For and on Behalf of: Intercontinental Capital & Investment Fund
Inc.
___________________________________
President
Corporate Seal
__________________________________
Vice President
34
<PAGE>
Back of instrument
INTERCONTINENTAL CAPITAL & INVESTMENT FUND INC
CORPORATE BOND SERIES 1, FLOATING RATE NOTES 1999-2024
DETAILED DESCRIPTION OF THE RIGHTS AND OBLIGATIONS OF BONDHOLDERS
The bonds shall earn interest at the annual rate of 0.5% over
the 25-year U.S. Treasury Bond Yield rates for dollar
deposits, such rate to be fixed on the FIRST Friday of June of
each year. The minimum interest rate, however, shall be six
and three-quarter percent (6.75%) per annum.
Interest shall be paid annually in arrears through a custodial
agent, by cashier's check sent via airmail to the most recent
address provided by the remitter of the interest coupons when
presented for payment. More specific instructions and payment
procedures will be provided with delivery of the bonds.
The bonds shall have duration of twenty-five (25) years and
shall be fully redeemed on the maturity date June 30th, 2024,
except that the Bondholders have the right to present the
bonds for cash redemption at anytime after June 30th, 2017,
provided that 180 days advance written notice is given to the
Company. Such redemption shall be made at one hundred percent
(100%) of the face value of each bond so redeemed. The Company
expects that sufficient cash or cash equivalents will be
available so that, when combined with the market value of the
Sinking Fund investments, a total redemption could be
completed at the end of twenty years without calling the
underlying loan or liquidating any of the Company's equity
interests in the borrowers.
There are no provisions to maintain a determined amount of
assets to secure these bonds, except for the Sinking Fund
described herein and the secured Promissory Notes issued to
the benefit of this Company by the borrowers.
As a guarantee for the principal payment of the bonds upon
their maturity, this Company has authorized the Custodial
Agent to purchase US$5,000,000.00 face value of U.S. Treasury
"Strips" Bonds with a maturity no later than June 30th, 2024.
The Company has allocated funds sufficient to accomplish this
purchase providing that bonds representing at least fifty
percent (50%) of the issue, or two and half Million Dollars
(US$2,500,000.00), are sold.
As a guarantee for the interest payment of the bonds should
the company default, the Company has authorized the Custodial
Agent to purchase US$8,437,500.00 face value of U.S. Treasury
"strips" Bonds or "AAA" rated Guaranteed Fixed Annuity or
Surety Bond with a maturity date no later than June 30th, 2024.
The Company has allocated funds sufficient to accomplish this
purchase providing that bonds representing at least fifty
percent (50%) of the issue, or two and half Million Dollars
(US$2,500,000.00), 00are sold.
As guarantee for interest payment to bondholders, this Company
will obtain secured Promissory Notes from the borrowers of the
money originated from the sale of this bond. Said notes will
earn interest at an annual rate of 8.75% fixed. The borrowers
will pay the interest semi-annually in arrears to the Paying
Agent for benefit of this Company, who will then make interest
payments annually in arrears to the bondholders.
These Promissory Notes, which also may be executed in the form
of corporate debentures, are secured or guaranteed by
substantially all of the assets owned or to be obtained by the
borrowers. None of the debt instruments are individually or
personally guaranteed.
To date, there are no provisions to allow or restrict the
issuance of additional securities, additional indebtedness, or
modify the terms of issuance or other similar provisions.
35
<PAGE>
Other than the Sinking Funds previously described, this
company does not plan to deposit or establish additional
collateral that will serve to guarantee these corporate bonds.
In fact, this company has dedicated substantially all of its
assets to guarantee payment of principal and interest to the
holders of these securities.
Bondholders may assign or transfer their rights and interest
under this bond. The company takes no responsibility for the
validity of any assignment; bondholders must make a change of
ownership rights in writing and send it to our home office.
The change will be effective on the date the change was made,
although the company is not bound by a change until the date
recorded.
Interest shall be due and payable on the 30th of June of each
year until maturity date (June 30th, 2024).
For Valve Received, I (we) _____________________________
hereby sell, assign and transfer unto
_____________________________________________ The bond
represented by the within certificate and do hereby irrevocably
constitute and appoint ______________________________ attorney
to transfer the said bond on the books of the within named
Corporation with full power of substitution in the premises
Dated ____________________, ______________
__________________________________________________________
Transfor
In Presence of ___________________________________
NOTE THE SIGNATURE OF THE ASSIGNMENT MUST CORRESPOND WITH THE
NAME AS WRITTEN UPON THE FACE OF THE CERIFICATE IN EVERY
PARTICULAR, WITOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE
WHATEVER
36
<PAGE>
Exhibits 4 Opinion re Legality
HOBERT T. DOUGLAS II & ASSOCIATES
ATTORNEY AT LAW
2529 Lancaster Ave.
Fort Worth, TX 76103
817-531-3595
To whom it may concern:
Re: Intercontinental & Investment Fund Inc.
Corporate Bond Series 1,
Floating Rate Notes 1999-2024
In our opinion, the securities referenced above are legal
securities and the corporation meets the requirement to issue
said securities. And it is also our opinion based on the
information provided by Intercontinental & Investment Fund
Inc., that the corporation intends to issue and deliver the
securities to the investors when sold
It is also our opinion that the securities as per the documents
provided by Intercontinental & Investment Fund Inc. through
the resolution issued by the board of directors that the
securities when issued is a binding obligation of the company
It is also my finding, that Intercontinental & Investment Fund
Inc. is a Texas Corporation and in good standing with the
Secretary of State of the State of Texas. As of the date of
this registration statement meets the entire requirement by the
state of Texas and federal law to enter into this transaction.
The corporation, through corporate resolution passed on January
29th, 1999 authorizes the officer signing on behalf of the
corporation.
The corporation has of the date of this opinion is in good
standing with the state of Texas and have the legal right and
power to enter into this transaction.
It is also my opinion that the corporation has no legal
obligation that limits its ability to enter into this
transaction.
Sincerely,
/s/ Hobert T. Douglas
Hobert T. Douglas
Attorney at Law
37
<PAGE>
Exhibit 5. Opinion re tax matters
OPINION RE TAX MATTERS
HOBERT T. DOUGLAS II & ASSOCIATES
ATTORNEY AT LAW
2529 Lancaster Ave.
Fort Worth, TX 76103
817-531-3595
TO WHOM IT MAY CONCERN
In my opinion, we are not aware of any tax effect or any
material tax matter or a revenue ruling from the Internal
Revenue Service that may have any material consequences to the
instrument being issued under this registration statement.
I advise all investors to seek experts counsel in respect to
their individual tax position.
SINCERELY,
/s/ Hobert T. Douglas
Hobert T. Douglas
ATTORNEY AT LAW
38
<PAGE>
Exhibit 6 Material Contract
ESCROW AGREEMENT:
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "Agreement") is entered into as of
the 23rd, Day of August 1999, by and between Intercontinental
Capital & Investment Fund Inc. a Texas corporation ("Issuer")
and U.S. Trust Company Texas, N.A. ("Escrow Agent").
RECITALS:
A. Issuer proposes to offer for sale to subscribers an
aggregate of 5,000 units of Corporate Bond (the "Units") at a
price of $1,000.00 per Unit, payable at the time of
subscribing for a Unit. Each Unit represents one Interest in
the Corporate Bond Series 1, Floating Rate Notes 1999-2024 the
payment of $2,500,000.00 for at least 2500 Units will be paid
into the escrow created by this Agreement.
B. Issuer intends to sell the Units on a best efforts "minimum
or none" basis in a private and public offering (the
"Offering") by delivering to each subscriber an SEC Registered
Placement Memorandum (the "Memorandum") describing the
Offering.
C. Issuer desires to establish an escrow account in which funds
received from subscribers would be deposited pending completion
of the Escrow Period (as defined below). U.S. Trust Company
Texas, N.A. agrees to serve as Escrow Agent in accordance with
the terms and conditions set forth herein.
AGREEMENT:
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the
parties hereby agree as follows:
1. Issuer hereby appoints U.S. Trust Company Texas, N.A. as
Escrow Agent and Escrow Agent shall establish an escrow account
(the "Escrow Account") on its books styled " Intercontinental
Capital & Investment Fund Inc. Escrow Account." Commencing upon
the execution of this Agreement, Escrow Agent shall act as
Escrow Agent and hereby agrees to receive and disburse the
proceeds from the offering of the Units in accordance with the
terms herewith. Issuer agrees to notify the Escrow Agent
promptly of the closing of the offering and sale of the Units,
2. Issuer shall cause all checks received from subscriber for
Units to be promptly deposited into the Escrow Account. Issuer
shall deliver to the Escrow Agent checks of the subscribers
made payable to the order of the Intercontinental Capital &
Investment Fund Inc. Escrow Account, and duly endorsed. Any
checks that are received by Escrow Agent that are not made
payable in this manner shall be returned to the Issuer. Issuer
shall furnish to the Escrow Agent at the time of each deposit
of the above-mentioned funds a list containing the name of each
subscriber, the subscriber's address, the number of Units
purchased, and the amount of the check being delivered to the
Escrow Agent. Prior to the receipt of the Minimum (as described
below), the Issuer is aware and understands that it is not
entitled to any proceeds from subscriptions deposited into the
Escrow Account and no amounts deposited in the Escrow Account
during the Escrow Period shall become the property of the
Issuer or any other entity, or be subject to the debts of the
Issuer or any other entity.
3. The Escrow period shall commence on the date hereof and
shall terminate ten (10) business days following the earlier to
occur of the following dates:
(a) The date upon which Escrow Agent confirms upon written
request of the Issuer that it has received into the Escrow
Account and collected gross subscription proceeds from the
sale of fifty (50) Units aggregating in deposited funds (the
"Minimum"); or
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<PAGE>
(b) The "Cessation Date," which for the purposes of this
Agreement shall be March 20th, 2000 Unless (i) Issuer elects
to continue to offer the Units for sale until some later date,
as permitted by the Memorandum, and (ii) Issuer notifies Escrow
Agent in writing no later than 10 days of such extension
specifying the extended Cessation Date; or
(c) The date upon which a determination is made by the Issuer
to terminate the Offering prior to the sale of the Minimum, as
communicated to Escrow Agent in writing.
Notwithstanding anything to the contrary contained herein, the
Cessation Date is intended to signify the date of the cessation
of the Offering as provided in the Memorandum, and not the
termination of the Escrow Period of this Agreement; and upon
the occurrence of any of the events described in (a), (b) or
(c) above, the Escrow Period shall continue for such ten (10)
business-day period solely for the limited purposes of
collecting subscribers' checks that have been deposited prior
to such event and disbursing funds from the Escrow Account as
provided herein. Escrow Agent will not accept deposits of
subscribers' checks after notice that any of the events
described in subparagraph (a), (b) and (c) has occurred.
4. The Escrow Agent will deposit the subscribers' checks for
collection and credit the proceeds to the Escrow Account to be
held by it under the terms of this Agreement. Notwithstanding
anything to the contrary contained herein, Escrow Agent is
under no duty or responsibility to enforce collection of any
checks delivered to Escrow Agent hereunder. The Escrow Agent
hereby is authorized to forward each check for collection and
deposit the proceeds in the Escrow Account. As an alternative,
the Escrow Agent may telephone the bank on which the check is
drawn to confirm that the check has been paid. Additionally, to
insure that such funds have cleared normal banking channels for
collection, Escrow Agent is authorized to hold for ten (10)
business days funds to be released. Issuer shall immediately
reimburse Escrow Agent any monies paid to it if thereafter the
subscriber's check is returned unpaid. Any item returned unpaid
to the Escrow Agent on its first presentation for payment shall
be returned to Issuer and need not be again presented by the
Escrow Agent for collection. Issuer agrees to reimburse Escrow
Agent for the cost incur-red with any returned check. The
Escrow Agent shall not be required to invest any funds
deposited in the Escrow Account and shall in no event be liable
for any investment loss. For purposes of this Agreement, the
term "collected funds" or the term "collected" when referring
to the proceeds of subscribers' checks shall mean all funds
received by Escrow Agent that have cleared normal banking
channels and are in the form of cash.
5. If prior to the Cessation Date, subscriber's checks in an
amount of at least the Minimum have been deposited in the
Escrow Account, upon request from Issuer, Escrow Agent will
confirm the amounts collected by it from subscriber's checks.
If such amount is at least equal to the Minimum, the Issuer
may send Escrow Agent a written notice providing a list of all
accepted subscribers, specifying the total amount of their
subscription to be remitted to Issuer, and containing a
request to terminate the Escrow Period and remit such amount,
less any fees or other amounts then owing from Issuer to
Escrow Agent hereunder, to the Issuer as promptly as possible,
but in no event later than ten (10) business days after such
termination, by issuing its bank check payable to the Issuer
or by depositing such amount directly into the account of
Issuer maintained with U.S. Trust Company Texas, N.A., as
designated in writing by Issuer to Escrow Agent. The Escrow
Period shall not terminate upon receipt by Escrow Agent of
such notice, but shall continue for such (10) business-day
period solely for the limited purposes of collecting
subscribers' checks that have been deposited prior to Escrow
Agent's receipt of such notice and disbursing funds from the
Escrow Account as provided herein. Escrow Agent will not
accept deposits of subscriber's checks after receipt of such
notice.
If, on the Cessation Date, the Minimum Amount has not been
deposited with the Escrow Agent and collected, or if Issuer
notifies the Escrow Agent in writing that Issuer elects to
terminate the Offering as provided in paragraph 3(c) above, the
Escrow Agent shall then issue and mail its bank checks to the
subscribers in the amount of the subscribers' respective
checks, without deduction, penalty or expense to the
subscriber, and shall, for this purpose, be authorized to rely
upon the names and addresses of subscribers famished it as
contemplated above. No subscriber shall be paid interest with
respect to such deposited funds. The purchase money returned to
each subscriber shall be free and clear of any and all claims
of the Issuer and any of its creditors.
40
<PAGE>
For each subscription for which the Escrow Agent has not
collected funds but has submitted the subscriber's check for
collection, the Escrow Agent shall promptly issue a check to
such subscriber in the amount of the collected funds from such
subscriber's check after the Escrow Agent has collected such
funds. If Escrow Agent has not yet submitted such subscriber's
check for collection, the Escrow Agent shall promptly remit the
subscriber's check directly to such subscriber.
At such time as Escrow Agent shall have made the payments and
remittances provided in the Agreement, the Escrow Agent shall
be completely discharged and released of any and all further
liabilities and responsibilities hereunder.
6. As consideration for its agreement to act as Escrow Agent
as herein described, Issuer agrees to pay the Escrow Agent an
administration fee as in Exhibit A, upon execution of this
Agreement, plus the fees described on the attached fee
schedule. Further, Issuer agrees to pay all disbursements and
advances incurred or made by the Escrow Agent in performance
of its duties hereunder, including reasonable fees, expenses
and disbursements of its counsel, all in accordance with the
attached fee schedule or the other provisions of this
Agreement. No such fees or reimbursements shall be paid out of
or chargeable to the funds on deposit in the Escrow Account
until such time as the Minimum has been collected.
If the Issuer rejects any subscription for which Escrow Agent
has already collected funds, the Escrow Agent shall promptly
issue a refund check to the rejected subscriber in the amount
of the subscriber's check. If the Issuer rejects any
subscription for which the Escrow Agent has not yet collected
funds but has submitted the subscriber's check for collection,
the Escrow Agent shall promptly issue a check in the amount of
the collected funds from the subscriber's check to the rejected
subscriber after the Escrow Agent has cleared such funds. If
Escrow Agent has not yet submitted a rejected subscriber's
check for collection, the Escrow Agent shall promptly remit the
subscriber's check directly to the subscriber.
7. This Agreement shall automatically terminate upon the
earlier of (i) twenty (20) days after the Cessation Date or
(ii) twenty (20) days after the date upon which the Escrow
Agent has delivered the final portion of Escrow Account funds
pursuant to the terms of this Agreement.
8. Escrow Agent reserves the right to resign hereunder, upon
ten (10) days prior written notice to Issuer, In the event of
said resignation, and prior to the effective date thereof,
Issuer, by written notice to Escrow Agent, shall designate a
successor escrow agent to assume the responsibilities of Escrow
Agent under this Agreement, and Escrow Agent immediately shall
deliver any undisbursed Escrow Account funds to such successor
escrow agent. If Issuer shall fail to designate such a
successor escrow agent within such time period, the Escrow
Agent may deliver any undisbursed funds into the registry of
any court having jurisdiction.
9. The parties hereto agree that the following provisions shall
control with respect to the rights, duties, liabilities,
privileges and immunities of the Escrow Agent:
a. Escrow Agent shall have no obligation to
invest the Escrow Account.
b. The Escrow Agent shall have no responsibility
except for the safekeeping and delivery of
the amounts deposited in the Escrow Account
in accordance with this Agreement. The Escrow
Agent shall not be liable for any act done or
omitted to be done under this Agreement or in
connection with the amounts deposited in the
Escrow Account, except as a result of the
Escrow Agent's gross negligence or willful
misconduct. The Escrow Agent is not a party
to nor is it bound by, nor need it give
consideration to the terms of provisions of,
even though it may have knowledge of, (i) any
agreement or undertaking by, between or among
the Issuer and any other party, except this
Agreement, (ii) any agreement or undertaking
that may be evidenced by this Agreement,
(iii) any other agreements that may now or in
the future be deposited with the Escrow agent
in connection with this Agreement. The Escrow
Agent is not a party to, is not responsible
for, and makes no representation with respect
to the offer, sale or distribution of the
Units including, but not limited to, matters
set forth in any offering documents prepared
and distributed in connection with the offer,
41
<PAGE>
sale and distribution of the Units. The
Issuer covenants that it will not commence
any action against the Escrow Agent at law,
in equity, or otherwise as a result of any
action taken or thing done by the Escrow
Agent pursuant to this Agreement, or for any
disbursement made as authorized herein upon
failure of the Issuer to give the notice
within the times herein prescribed. The
Escrow Agent has no duty to determine or
inquire into any happening or occurrence of
or of any performance or failure of
performance of the Issuer or of any other
party with respect to agreements or
arrangements with any other party, If any
question, dispute or disagreement arises
among the parties hereto and/or any other
party with respect to the funds deposited in
the Escrow Account or the proper
interpretation of this Agreement, the Escrow
Agent shall not be required to act and shall
not be held liable for refusal to act until
the question or dispute is settled, and the
Escrow Agent has the absolute right at its
discretion to do either or both of the
following:
(i) Withhold and/or stop all further
performance under this Agreement until
the Escrow Agent is satisfied, by
receipt of a written document in form
and substance satisfactory to the Escrow
Agent and executed and binding upon all
interested parties hereto (who may
include the subscribers), that the
question, dispute, or disagreement had
been resolved; or
(ii) File a suit in interpleader and obtain
by final judgment, rendered by a court
of competent jurisdiction, an order
binding all parties interested in the
matter. In any such suit, or should the
Escrow Agent become involved in
litigation in any manner whatsoever on
account of this Agreement or the Escrow
Account, the Escrow Agent shall be
entitled to recover from the Issuer its
attorneys' fees and costs.
The Escrow Agent shall never be required to
post a bond in connection with any services
hereunder. The Escrow Agent may consult with
counsel of its own choice and shall have full
and complete authorization and protection for
and shall not be liable for any action taken
or suffered by it hereunder in good faith and
believed by it to be authorized hereby, nor
for action taken or omitted by it in
accordance with the advice of such counsel
(who shall not be counsel for the Issuer),
c. The Escrow Agent shall be obligated only for
the performance of such duties as are
specifically set forth in this Agreement and
may rely and shall be protected in acting or
refraining from acting upon any written
notice, instruction or request furnished to
it hereunder and believed by it to be genuine
and to have been signed or presented by the
proper party or parties and to take
statements made therein as authorized and
correct without any affirmative duty of
investigation.
d. THE ESCROW AGENT SHALL NOT BE LIABLE TO ANY
PERSON FOR ANYTHING WHICH IT MAY DO OR
REFRAIN FROM DOING IN CONNECTION WITH THIS
AGREEMENT, INCLUDING THE ESCROW AGENT'S OWN
NEGLIGENCE, BUT EXCLUDING THE ESCROW AGENT'S
OWN GROSS NEGLIGENCE OR WILLFUL MALFEASANCE.
IN NO EVENT SHALL THE ESCROW AGENT BE LIABLE
TO THE ISSUER OR ANY THIRD PARTY FOR SPECIAL,
INDIRECT, OR CONSEQUENTIAL DAMAGES, OR LOST
PROFITS OR LOSS OF BUSINESS, ARISING UNDER OR
IN CONNECTION WITH THIS AGREEMENT.
42
<PAGE>
e. THE ISSUER HEREBY AGREES TO INDEMNIFY THE
ESCROW AGENT FOR, AND TO HOLD IT HARMLESS
AGAINST, ANY LOSS, LIABILITY, OR EXPENSE
(INCLUDING, WITHOUT LIMITATION, ALL LEGAL
EXPENSES INCURRED IN ENFORCING ANY OF THE
PROVISIONS OF THIS AGREEMENT OR OTHERWISE IN
CONNECTION HEREWITH) INCURRED WITHOUT GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT ON THE PART
OF THE ESCROW AGENT, ARISING OUT OF OR IN
CONNECTION WITH ENTERING INTO THIS AGREEMENT
AND CARRYING OUT ITS DUTIES HEREUNDER,
INCLUDING THE COSTS AND EXPENSES OF
DEFENDING ITSELF AGAINST ANY CLAIM OF
LIABILITY HEREUNDER OR ARISING OUT OF OR IN
CONNECTION WITH THE SALE OF THE UNITS. THIS
COVENANT SHALL SURVIVE THE TERMINATION OF
THIS AGREEMENT.
f. The Escrow Agent shall not be bound by any
modification, amendment, termination,
cancellation, rescission or supersession of
this Agreement unless the same shall be in
writing and signed by all of the other
parties hereto and, if its Duties as
Escrow Agent hereunder are affected thereby,
unless it shall have given prior written
consent thereto.
10. Notices required to be sent hereunder shall be delivered by
hand, sent by an express mail service or sent via United States
mail, postage prepaid, certified, return receipt requested, to
the following address:
If to Issuer: Intercontinental Capital & Investment Fund Inc.
P.O. Box 15155
Fort Worth, TX 76119
Phone (817) 534-7305, Fax 817-534-7803
If to Escrow Agent: U.S. TRUST COMPANY TEXAS, N.A.
Corporate Trust Department
2001 Ross Ave., Suite 2700
Dallas, Texas 75201
Phone (214) 754-1255
No notice to the Escrow Agent shall be deemed to be delivered
until actually received by the Escrow Agent. From time to time
any party hereto may designate an address other than the
address listed above by giving the other parties hereto not
less than five (5) days advance notice of such change in
address in accordance with the provisions hereof
11. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of Texas and the laws of
the United State applicable to transactions in Texas.
EXECUTED on the date first written above.
ISSUER: Intercontinental Capital & Investment Fund Inc.
/s/ Boniface Suleman Odiodio
____________________________________
President
ESCROW AGENT: U.S. Trust Company Texas, N.A.
/s/ John Stohimann
____________________________________
Authorized Officer
43
<PAGE>
EXHIBIT A
ESCROW AGENT FEE SCHEDULE
ANNUAL ADMINISTRATIVE FEE $2,000.00
PAID AT CLOSING
TRANSACTION FEES:
DEPOSIT/ CLEARING CHECKS $N/A
RETURN SUBCRIPTION FUNDS - (CHECKS) $5.00 PER CHECK
44
<PAGE>
Exhibit 6 Material Contract
TRUST AGREEMENT
TRUST AGREEMENT
THIS SETTLEMENT IS MADE THIS 25th DAY OF August 1999
By
Intercontinental Capital & Investment fund, Inc.
(Hereinafter referred to as the Settlor)
for
Security-holders of Corporate Bond Series 1,
Floating Rate Note 1999-2024
(hereinafter referred to as the Beneficiary)
And
Nevada First Holding, Inc.
(Hereinafter referred to as the Trustee)
The Settlor hereby instruct the Bank and or the Financial
advisor hereinafter referred to as the protector to effect
capital investment in the form of US Government Treasury
"Strip" or "AAA" rated Guaranteed Fixed Annuity in the
settlor's name for the account of the settlor and for the
benefit of the Beneficiary.
This Trust agreement is irrevocable and the Trust property can
not be withdraw by any one or used for any reason other than
the one stated under APPLICATION OF TRUST ASSETS, unless as
required under the Trust Indenture agreement, attached hereto
and made a part hereof this settlement.
The Trust Name shall be:
Intercontinental Capital & Investment fund Inc. Security-holder's Trust
THE TRUST ASSETS
The account is effected within the limit of the settlor's
existing cash balance. The Trust assets shall be sinking Fund
I and II and shall be created by the deposit with the
protector 40.5% of $5,000,000.00 into the account to be
invested in US Government Treasury "Strip" or "AAA" rated
Guaranteed Fixed Annuity and of the deposit amount 18.5% to be
allocated to Sinking Fund I and 22% to be allocated to Sinking
Fund II.
WHEREAS, the Settlor has hereby transferred, conveyed and
delivered to the Trustee the property described on "Schedule
A", attached hereto and made a part hereof, to be held by the
Trustee, together with any property which may hereafter be
added thereto by the Settlor or by any other person by Will or
otherwise, including the investments and reinvestments
thereof, all of which are hereinafter referred to collectively
as the "Trust Property," IN TRUST, for the purposes and with
the powers and authorities and subject to the provisions,
terms and conditions herein contained and in the Trust
Indenture Agreement.
The Settlor here now irrevocably transfers all its right and
power under the Trust Property to the Beneficiary.
APPLICATION OF TRUST ASSETS
The Asset of the Sinking Fund I Trust are to be held in this
trust for the benefit of the security-holders and to be
liquidated in 25 years or as called for under the Trust
Indenture Agreement and the Trust Property delivered to the
security-holders as re-payment of their principle investment
of $5,000,000.00.
45
<PAGE>
The Asset of the Sinking Fund II Trust are to be held in
this trust for the benefit of the security-holders and to be
liquidated in 25 years or as called for under the Trust
Indenture Agreement and the Trust Property delivered to the
security-holders as re-payment of accrued interest due
security-holders as settlement for interest income of
$8,437,500.00 in the event of default as defined in the
Trust Indenture Agreement. If no even of default, than the
sinking fund II Asset is delivered to the settlor in 25
years.
NOW THIS DEED WITNESSES AS FOLLOWS:
The Trustee shall hold, manage, invest and reinvest the Trust
Property, shall collect all of the income therefrom, and,
after the payment of expenses, shall dispose of the net income
therefrom and the principal thereof as hereinafter provided by
the Trust Indenture Agreement attached hereto and made a part
hereof this settlement.
A. During the life of the Settlor and as long as the Settlor
is not incapacitated, the Trustee shall pay or apply all
of the net income from and so much of the principal of
this Settlement as directed in the Trust Indenture
Agreement.
B. This Trust agreement shall be governor by the Trust
Indenture Agreement.
REVOCATION AND AMENDMENTS
Anything to the contrary in this Deed notwithstanding, the
Settlor may not revoke or amend the terms of this Settlement
in whole or in part at any time.
OPINIONS OF COUNSEL
The Trustee may consult with counsel, in the State of Texas or
elsewhere, who may be counsel to the Settlor, or to the
Trustee, concerning any question which may arise with
reference to the Trustee's duties or powers, or any of the
provisions of this Agreement, and the opinion of such counsel
shall be a full and complete authorization and protection with
regard to any action taken or not taken by the Trustee in good
faith and in accordance with such opinion of counsel, and the
Trustee shall not be liable for any loss or damage sustained
as a result thereof.
ADDITIONS TO PRINCIPAL
The Settlor, or any other person, shall have, with the consent
of the Trustee, the right at any time to bequeath, devise,
assign, transfer, set over and deposit with the Trustee
additional property of any kind acceptable to the Trustee,
including the proceeds of policies of life insurance, to be
added to, held, invested or disposed of as part of the Trust
Property.
PROTECTOR
A. The Settlor shall have the power to appoint or remove one
- - or more Protectors of the Trust Fund by delivering a
written-signed instrument to the Trustee. A Protector shall
have the right to exercise all powers held by the settlor
except the right to appoint a Protector or to countermand any
instruction given by the Settlor to the Trustee concerning a
Protector. If at any time there is more than one Protector
concurrently authorized to act they shall be required to act
unanimously.
B. Any appointment or removal of a Protector shall take
effect upon the receipt of the notice by the Trustee.
C. A Protector may resign at any time by delivering written
notice thereof to the Trustee. Such notice shall be effective
when received by the Trustee.
D. The Settlor undertakes to pay 0% to the Protector
calculated on the amount invested as management fee on a
yearly basis. Or not less than $0.00 per year.
46
<PAGE>
GENERAL POWERS OF THE TRUSTEE
In addition to such other powers as may be granted to it by
law, the Trustee shall have full power in its discretion:
To retain and invest only in US Treasury Strip Bond or
Guaranteed Fixed Annuity with 25 years term. As advised by
the protector
PROHIBITION OR UNENFORCEABILITY
Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of that prohibition
or unenforceability without invalidating the remaining
provisions hereof or affecting the validity or enforceability
of that provision in any other jurisdiction.
WAIVER OF RIGHTS
No failure or delay on the part of either party in exercising
any right hereunder shall operate as a waiver of, or impair,
any such right. No single or partial exercise of any such
right shall preclude any other or further exercise thereof or
the exercise of any other right. No waiver of any such right
shall be effective unless given in writing. No waiver of any
such right shall be deemed a waiver of any other right
hereunder.
This Trust Agreement will not cease by reason of desolation or
loss of capacity to act of the Settlor, but will continue to
remain in force.
EXECUTION BY COUNTERPARTS
This Settlement is executed in three counterparts, each of
which shall be deemed to be an original, and all of which,
taken together, shall be deemed one and the same instrument.
GOVERNING LAWS:
This is established under the law of Texas and shall be
governed, construed and regulated by such law, except that the
Trustee may declare that this settlement shall be governed,
construed and regulated by the law of such other jurisdiction
as the trust shall determine for the public interest.
Name Address and Phone of Settlor:
INTERCONTINENTAL CAPITAL & INVESTMENT FUND INC
P.O. BOX 15155, FORT WORTH, TX 76119
PHONE 817-534-7305 FAX 817-534-7803
Name Address and Phone of Trustee
NEVADA FIRST HOLDING INC
4535 W. SAHARA AVE., SUITE 100A534
LAS VEGAS, NV89102
702-320-5315 FAX 702-320-5320
Name Address and Phone of Protector
AMERICAN EXPRESS FINANCIAL ADVISORS INC
IDS LIFE INSURANCE COMPANY
860 AIRPORT FREEWAY WEST, SUITE 401
HURST, TX 76054
PHONE 817-428-9898 FAX 817-428-9677
47
<PAGE>
This Settlement shall terminate on June 30th, 2024, unless
as otherwise set forth in the indenture agreement and the
Trust Property shall be delivered to the Beneficiary.
IN WITNESS whereof the Settlor has hereunto set his hand and
seal this 27 day of August, 1999.
SIGN SEALED AND DELIVERED BY
/s/ David M. Swanner
________________________________________________
Intercontinental Capital & Investment fund, Inc. Settlor
By It's Vice President
IN THE PRESENCE OF
/s/ Priscilla A. Tejada
_____________________________________________________ Notary Public
County of Tarrant State of Texas
This 27 day of August , 1999 Notary Seal
48
<PAGE>
SCHEDULE A
TO DEED OF TRUST
DATED: August 27, 1999
ORIGINAL PRINCIPAL
$1,000.00
49
<PAGE>
Exhibit 7 Consent of experts and counsel
WEAVER & TIDWELL, LLP
CERTIFIED PUBLIC ACCOUNTANTSAND CONSULTANTS
307 West Seventh Street, Suite 1500
Fort Worth, Texas 76102
817-332-7905
F 817-429-5936
INDEPENDENT AUDITOR'S CONSENT
We consent to the use in this Registration Statement of
Intercontinental Capital & Investment Fund, Inc. on Form SB-2/A
of our report dated July 26, 1999, appearing in the Prospectus,
which is part of this Registration Statement.
/s/ Weaver and Tidwell, L.L.P.
WEAVER AND TIDWELL, L.L.P.
Fort Worth, Texas
August 25, 1999
50
<PAGE>
Exhibit 8. Power of attorney
Power of attorney NOT APPLICABLE
See Subscription Agreement, Signature Page and Power of Attorney
Exhibit 9. Statement of eligibility of trustee
Statement of eligibility of trustee: See Indenture Agreement
and accompanying documents labeled Appendix A
Exhibit 10.
Invitation for competitive bids
NOT APPLICABLE
See "Selling security Holder" Cash Sales in the prospectus
(This rest of this page has been left blank intentionally)
51
<PAGE>
Exhibit A
Other Financial Data and projections
Other Financial Data & Projection
The following factors were assumed:
Assumptions
Gross offering is $5,000,000.00, Interest Paid to Bondholder
6.75%, Interest Paid by Borrowers 8.75%, Insurance was
estimated at $12,500.00 per year, Administrative fee was
estimated at $25,000.00 per year, Management fees was estimated
at $10,000.00, Income tax was estimated at 3.5% per year,
Interest earned on invested funds was estimated at 10% per
year. Sinking fund I is based on a deposit of 18.5% of gross
offering and Sinking Fund II is based on the deposit of 22% of
gross.
Interest income is obtained by gross offering multiply by
interest paid by borrower ($5,000,000.00@ 8.75%).
Interest Expense is obtained by gross offering multiply by
interest paid to bondholder ($5,000,000.00@ 6.75%).
Net to Issuer is obtained by interest income less loan service
fee, less interest expense, less insurance equal net to issuer.
{($5,000,000.00@ 8.75) - (5,000,000.00@ 6.75) -12,500.00} US
Treasury Strip bonds.
Sinking fund I am based on a deposit of 17.5% of gross offering
(5,000,000.00 @18.5%) US Treasury Strip bonds.
Sinking Fund II is based on the deposit of 22% of gross
offering (5,000,000.00 @22%) US Treasury Strip bonds.
Net interest income (Net to issuer) is obtained by interest
income less, less interest expense, less insurance equal net
to issuer. {($5,000,000.00@ 8.75) - (5,000,000.00@ 6.75) -
12,500.00} US Treasury Strip bonds.
Interested Earned on invested funds is based on 10% of net
interest income (net to issuer).
Gross cash flow is obtained by net interest income plus
interest earned on invested funds.
Net cash flow is obtained by Gross cash flow less
administrative fee estimated at $25,000.00 per year, Management
fees estimated at $10,000.00, and Tax estimated at 3.6% per
year.
Risk Factor of other financial date and projections:
1. These are Estimates only and should not be considered actual
2. Expense may increase
3. Market conditions may change without notice
4. Rates may change without notice
5. No assurance that the projections will be attained
6. Sinking fund may fall short of projections
7. See "RISK FACTORS" above
All investors are advised to seek professional consultation
before investing
52
<PAGE>
FUNDS
ALLOCATIONS
<TABLE>
<CAPTION>
General Sinking Sinking Net to
Gross Underwriting Fund I Fund II Insurance The
Proceed Fees Principal Interest Guaranty Company
<S> <C> <C> <C> <C> <C> <C>
US Dollar $5,000,000.00 $225,000.00 $925,000.00 $1,100,000.00 $250,000.00 $2,500,000.00
Percentage 100.0% 4.5% 18.5% 22.0% 5.0% 50.0%
</TABLE>
52-i
<PAGE>
CASH FLOW AND ALLOCATION PROJECTIONS
<TABLE>
<CAPTION>
Interest Interest Insurance Net Sinking Fund I Sinking Fund II
Year Income Expense Expense To The Market Value Market Value
Year Ending from Notes on Bond on Bond Company $925,000.00 $1,100,000.00
<S> <C> <C> <C> <C> <C> <C> <C>
1 6/30/00 $ 437,500.00 $ 337,500.00 $ 12,500.00 $ 87,504.00 $1,088,000.00 $1,393,500.00
2 6/30/01 $ 437,500.00 $ 337,500.00 $ 12,500.00 $ 87,504.00 $1,251,000.00 $1,687,000.00
3 6/30/02 $ 437,500.00 $ 337,500.00 $ 12,500.00 $ 87,504.00 $1,414,000.00 $1,980,500.00
4 6/30/03 $ 437,500.00 $ 337,500.00 $ 12,500.00 $ 87,504.00 $1,577,000.00 $2,274,000.00
5 6/30/04 $ 437,500.00 $ 337,500.00 $ 12,500.00 $ 87,504.00 $1,740,000.00 $2,567,500.00
6 6/30/05 $ 437,500.00 $ 337,500.00 $ 12,500.00 $ 87,504.00 $1,903,000.00 $2,861,000.00
7 6/30/06 $ 437,500.00 $ 337,500.00 $ 12,500.00 $ 87,504.00 $2,066,000.00 $3,154,500.00
8 6/30/07 $ 437,500.00 $ 337,500.00 $ 12,500.00 $ 87,504.00 $2,229,000.00 $3,448,000.00
9 6/30/08 $ 437,500.00 $ 337,500.00 $ 12,500.00 $ 87,504.00 $2,392,000.00 $3,741,500.00
10 6/30/09 $ 437,500.00 $ 337,500.00 $ 12,500.00 $ 87,504.00 $2,555,000.00 $4,035,000.00
11 6/30/10 $ 437,500.00 $ 337,500.00 $ 12,500.00 $ 87,504.00 $2,718,000.00 $4,328,500.00
12 6/30/11 $ 437,500.00 $ 337,500.00 $ 12,500.00 $ 87,504.00 $2,881,000.00 $4,622,000.00
13 6/30/12 $ 437,500.00 $ 337,500.00 $ 12,500.00 $ 87,504.00 $3,044,000.00 $4,915,500.00
14 6/30/13 $ 437,500.00 $ 337,500.00 $ 12,500.00 $ 87,504.00 $3,207,000.00 $5,209,000.00
15 6/30/14 $ 437,500.00 $ 337,500.00 $ 12,500.00 $ 87,504.00 $3,370,000.00 $5,502,500.00
16 6/30/15 $ 437,500.00 $ 337,500.00 $ 12,500.00 $ 87,504.00 $3,533,000.00 $5,796,000.00
17 6/30/16 $ 437,500.00 $ 337,500.00 $ 12,500.00 $ 87,504.00 $3,696,000.00 $6,089,500.00
18 6/30/17 $ 437,500.00 $ 337,500.00 $ 12,500.00 $ 87,504.00 $3,859,000.00 $6,383,000.00
19 6/30/18 $ 437,500.00 $ 337,500.00 $ 12,500.00 $ 87,504.00 $4,022,000.00 $6,676,500.00
20 6/30/19 $ 437,500.00 $ 337,500.00 $ 12,500.00 $ 87,504.00 $4,185,000.00 $6,970,000.00
21 6/30/20 $ 437,500.00 $ 337,500.00 $ 12,500.00 $ 87,504.00 $4,348,000.00 $7,263,500.00
22 6/30/21 $ 437,500.00 $ 337,500.00 $ 12,500.00 $ 87,504.00 $4,511,000.00 $7,557,000.00
23 6/30/22 $ 437,500.00 $ 337,500.00 $ 12,500.00 $ 87,504.00 $4,674,000.00 $7,850,500.00
24 6/30/23 $ 437,500.00 $ 337,500.00 $ 12,500.00 $ 87,504.00 $4,837,000.00 $8,144,000.00
25 6/30/24 $ 437,500.00 $ 337,500.00 $ 12,500.00 $ 87,504.00 $5,000,000.00 $8,437,500.00
Total $10,937,500.00 $8,437,500.00 $312,500.00 $2,187,600.00 $5,000,000.00 $8,437,500.00
</TABLE>
52-ii
<PAGE>
INCOME EXPENSE AND RESERVE ALLOCATIONS
<TABLE>
<CAPTION>
Net Interest Gross Admin./ Net
Year Interest Earned on Cash General Management Income Cash
Year Ending Income Investment Flow Expense Expense Tax Flow
<S> <C> <C> <C> <C> <C> <C> <C> <C>
1 6/30/00 $ 87,504.00 $8,150.00 $95,654.00 ($25,000.00) ($10,000.00) ($3,500.00) $57,154.00
2 6/30/01 $ 87,504.00 $8,150.00 $95,654.00 ($25,000.00) ($10,000.00) ($3,500.00) $57,154.00
3 6/30/02 $ 87,504.00 $8,150.00 $95,654.00 ($25,000.00) ($10,000.00) ($3,500.00) $57,154.00
4 6/30/03 $ 87,504.00 $8,150.00 $95,654.00 ($25,000.00) ($10,000.00) ($3,500.00) $57,154.00
5 6/30/04 $ 87,504.00 $8,150.00 $95,654.00 ($25,000.00) ($10,000.00) ($3,500.00) $57,154.00
6 6/30/05 $ 87,504.00 $8,150.00 $95,654.00 ($25,000.00) ($10,000.00) ($3,500.00) $57,154.00
7 6/30/06 $ 87,504.00 $8,150.00 $95,654.00 ($25,000.00) ($10,000.00) ($3,500.00) $57,154.00
8 6/30/07 $ 87,504.00 $8,150.00 $95,654.00 ($25,000.00) ($10,000.00) ($3,500.00) $57,154.00
9 6/30/08 $ 87,504.00 $8,150.00 $95,654.00 ($25,000.00) ($10,000.00) ($3,500.00) $57,154.00
10 6/30/09 $ 87,504.00 $8,150.00 $95,654.00 ($25,000.00) ($10,000.00) ($3,500.00) $57,154.00
11 6/30/10 $ 87,504.00 $8,150.00 $95,654.00 ($25,000.00) ($10,000.00) ($3,500.00) $57,154.00
12 6/30/11 $ 87,504.00 $8,150.00 $95,654.00 ($25,000.00) ($10,000.00) ($3,500.00) $57,154.00
13 6/30/12 $ 87,504.00 $8,150.00 $95,654.00 ($25,000.00) ($10,000.00) ($3,500.00) $57,154.00
14 6/30/13 $ 87,504.00 $8,150.00 $95,654.00 ($25,000.00) ($10,000.00) ($3,500.00) $57,154.00
15 6/30/14 $ 87,504.00 $8,150.00 $95,654.00 ($25,000.00) ($10,000.00) ($3,500.00) $57,154.00
16 6/30/15 $ 87,504.00 $8,150.00 $95,654.00 ($25,000.00) ($10,000.00) ($3,500.00) $57,154.00
17 6/30/16 $ 87,504.00 $8,150.00 $95,654.00 ($25,000.00) ($10,000.00) ($3,500.00) $57,154.00
18 6/30/17 $ 87,504.00 $8,150.00 $95,654.00 ($25,000.00) ($10,000.00) ($3,500.00) $57,154.00
19 6/30/18 $ 87,504.00 $8,150.00 $95,654.00 ($25,000.00) ($10,000.00) ($3,500.00) $57,154.00
20 6/30/19 $ 87,504.00 $8,150.00 $95,654.00 ($25,000.00) ($10,000.00) ($3,500.00) $57,154.00
21 6/30/20 $ 87,504.00 $8,150.00 $95,654.00 ($25,000.00) ($10,000.00) ($3,500.00) $57,154.00
22 6/30/21 $ 87,504.00 $8,150.00 $95,654.00 ($25,000.00) ($10,000.00) ($3,500.00) $57,154.00
23 6/30/22 $ 87,504.00 $8,150.00 $95,654.00 ($25,000.00) ($10,000.00) ($3,500.00) $57,154.00
24 6/30/23 $ 87,504.00 $8,150.00 $95,654.00 ($25,000.00) ($10,000.00) ($3,500.00) $57,154.00
25 6/30/24 $ 87,504.00 $8,150.00 $95,654.00 ($25,000.00) ($10,000.00) ($3,500.00) $57,154.00
Total $2,187,600.00 $203,750.00 $2,187,600.00 ($625,000.00) ($250,000.00) ($87,500.00) $1,428,850.00
<CAPTION>
Transferred Cumulative Unrestricted Cumulative Cumulative
Year to Reserve Reserve Net Cash Unrestricted Re-invested
Year Ending Fund Fund Flow Cash Flow cash Balance
<S> <C> <C> <C> <C> <C>
1 6/30/00 $34,292.40 $34,292.40 $22,861.60 $22,861.60 $57,154.00
2 6/30/01 $34,292.40 $68,584.80 $22,861.60 $45,723.20 $114,308.00
3 6/30/02 $34,292.40 $102,877.20 $22,861.60 $68,584.80 $171,462.00
4 6/30/03 $34,292.40 $137,169.60 $22,861.60 $91,446.40 $228,616.00
5 6/30/04 $34,292.40 $171,462.00 $22,861.60 $114,308.00 $285,770.00
6 6/30/05 $34,292.40 $205,754.40 $22,861.60 $137,169.60 $342,924.00
7 6/30/06 $34,292.40 $240,046.80 $22,861.60 $160,031.20 $400,078.00
8 6/30/07 $34,292.40 $274,339.20 $22,861.60 $182,892.80 $457,232.00
9 6/30/08 $34,292.40 $308,631.60 $22,861.60 $205,754.40 $514,386.00
10 6/30/09 $34,292.40 $342,924.00 $22,861.60 $228,616.00 $571,540.00
11 6/30/10 $34,292.40 $377,216.40 $22,861.60 $251,477.60 $628,694.00
12 6/30/11 $34,292.40 $411,508.80 $22,861.60 $274,339.20 $685,848.00
13 6/30/12 $34,292.40 $445,801.20 $22,861.60 $297,200.80 $743,002.00
14 6/30/13 $34,292.40 $480,093.60 $22,861.60 $320,062.40 $800,156.00
15 6/30/14 $34,292.40 $514,386.00 $22,861.60 $342,924.00 $857,310.00
16 6/30/15 $34,292.40 $548,678.40 $22,861.60 $365,785.60 $914,464.00
17 6/30/16 $34,292.40 $582,970.80 $22,861.60 $388,647.20 $971,618.00
18 6/30/17 $34,292.40 $617,263.20 $22,861.60 $411,508.80 $1,028,772.00
19 6/30/18 $34,292.40 $651,555.60 $22,861.60 $434,370.40 $1,085,926.00
20 6/30/19 $34,292.40 $685,848.00 $22,861.60 $457,232.00 $1,143,080.00
21 6/30/20 $34,292.40 $720,140.40 $22,861.60 $480,093.60 $1,200,234.00
22 6/30/21 $34,292.40 $754,432.80 $22,861.60 $502,955.20 $1,257,388.00
23 6/30/22 $34,292.40 $788,725.20 $22,861.60 $525,816.80 $1,314,542.00
24 6/30/23 $34,292.40 $823,017.60 $22,861.60 $548,678.40 $1,371,696.00
25 6/30/24 $34,292.40 $857,310.00 $22,861.60 $571,540.00 $1,428,850.00
Total $857,310.00 $857,310.00 $571,540.00 $571,540.00 $1,428,850.00
</TABLE>
52-iii
<PAGE>
Exhibit B:
Other General Information
FOR INFORMATION ONLY
BANKERS
ADDISON SECURITIES INC.
3305 Northland Drive , Suite 406
Austin, TX 78731
512-406-3352
ACCOUNTANT
MARY ELAINE MAYER
Certified Public Accountant
5601 Bridge Street, Suite 490
Fort Worth, TX 76102
817-429-0861
LEGAL ADVISERS
HOBERT T. DOUGLAS II & ASSOCIATES
HOBERT T. DOUGLAS II
2529 Lancaster Ave.
Fort Worth, Texas 76103
817-531-3595
INDENTURE TRUSTEE
Nevada First Holding Inc.
Corporate Trust Department
5130 Pecos Drive Suite 2C
Las Vegas, NV 89120
702-320-5315
ESCROW AGENT
U.S. Trust Company Texas N.A.
2001 Ross Avnue, Suite 2700
Dallas, Texas 75201
214-754-1255
AUDITOR
Weaver & Tidwell , LLP
Certified Public Accountant and Consultant
307 West Seventh Street, Suite 1500
Fort Worth, Texas 76102
817-332-7905
FINANCIAL ADVISORS
American Express Financial Advisors Inc
IDS Life Insurance Company
Chase Bank Building, Suite 401
860 Airport Freeway West
Hurst, Texas 76054
817-428-9898
53
<PAGE>
Exhibit C. Articles of Incorporation
ARTICLES OF INCORPORATION OF INTERCONTINENTAL CAPITAL &
INVESTMENT FUND INC.
The undersigned natural person of the age of eighteen (18)
years or more acting as incorporate of a corporation under the
Business Corporation Act, hereby adopts the following Articles
of Incorporation:
ARTICLE ONE: The name of the corporation is: INTERCONTINENTAL
CAPITAL & INVESTMENT FUND INC.
ARTICLE TWO: The period of its duration is perpetual.
ARTICLE THREE: This is a close corporation
ARTICLE FOUR: The purpose for which the corporation is
organized is the transaction of any and all lawful business for
which corporations may be incorporated under the Texas Business
Corporation Act. including but not limited to (a) To negotiate
loans of every description,; ( b) To deal in assay and refine
precious metal ; (c) To carry on the business as capitalists
and financiers; (d) To deal in export and import of all
products and service; (e) To transact on commission the
general business of land agent; (f) To contract for public or
private loan and to negotiate and issue the same (g) To act as
executor and trustee of wills, settlement and trust deed of all
kinds (h) To enter into joint ventures and co-venture with
business enterprise for profit (i) To invest money is such
manner as may from time to time be thought proper (j) To
negotiate or pay in advance coupons and interest on public loan
or securities (k) To carry on the business of discounting,
dealing in exchange, in species and securities; (1) To re-
issue any stock or share or other securities with or without
the guarantees of the company; (m) To finance or assist in
financing the sales of good articles or commodities of all and
every kind; (n) To advance and lend money on real, persona;
and mixed securities, on cash, credit, or other account; (o)
To enter into arrangement with companies, firms and person for
promoting business of all legal kind; (p) To act as agent for
any government and other authority, and for public and private
bodies and person ; (q) To acquire for cash or credit personal
or real properties, business enterprise, securities and all
asset of value; (r) To act as agent for sale and purchase of
any stock, share or securities or any other monetary or
mercantile ; (s) To carry on any other business of similar
nature or any business which may in the opinion of the
Directors be conveniently carried on by this company.) To act
as managers or to direct the management of state domains, of
the property and estates of communes, corporation, foundation,
or private person; (t) To carry on the business of Investment
company, to carry on the business of holding company and to
carry on the business of lending; (u) To guarantee the payment
or performance of any debt, contract or obligation or become
security for any person company; (v) To insure or guarantee
the payment of advances, credit, bill of exchange and other
commercial obligation or commitment of every description; (w)
To buy, make advance on, sell all descriptions of freehold,
leasehold, or other properties, and all description of produce
or merchandise, and stock share, bond, mortgages, debentures,
or obligations; (x) To promote, effect, insure, guarantee,
underwrite, participate in manage, and carry out any issue,
public or private, of state, municipal or other loans or of
share, stock, debenture, debenture stock of any company,
corporation or association and to lend money for the purpose of
any such issue; (y) To borrow or raise money by the issue of
debenture, debenture stock (perpetual or terminable), bond,
mortgages, or any other securities, founded or based upon all
or any of the property and right of the company, including its
un-called capital, or without any such security and upon such
terms as to priority or other vise, as the company shall think
fit. (Z) To deal in transaction of any and all lawful
business for which corporations may be incorporated under the
Texas Business Corporation Act.
ARTICLE FIVE: The aggregate number of shares, which the
corporation shall nave authority to issue, is Five Hundred
Million (500,000,000) shares common stock at no par value. ONE
HUNDRED MILLION (100,000,000 shares of Class A Preferred Stock
and ONE HUNDRED MILLION (100,000,000) shares of Class B
Preferred Stock.
ARTICLE SIX: The corporation will not commence business until
it has received for the issuance of shares consideration of the
value of One Thousand Dollars ($1000.00) consisting of money,
labor done or property actually received.
ARTICLE SEVEN: The address of its initial registered office is
P.O. Box 15155, Fort Worth, TX 76119, and the name of its
initial registered agent at such address is Boniface Suleman
Odiodio.
54
<PAGE>
ARTICLE EIGHT: The number of directors constituting the initial
board of directors is three (3), and the names and addresses of
the persons who are to serve as directors until the first
annual meeting of the shareholders or until their successors
are elected and qualified are:
Boniface Suleman Odiodio, P.O. Box 15155, Fort Worth, Texas
76119, Tel 817-534-7305
David M. Swanner, Jr., P.O. Box 15155, Fort Worth, Texas 76119,
Tel 817-534-7305
Jermyn Chan, P.O. Box 15155, Fort Worth, Texas 76119, Tel 817-
534-7305
ARTICLE NINE: The Corporation indemnifies the Shareholder,
Directors, Management and Employees of all legal acts performed
on behalf of the corporation in good faith.
ARTICLE TEN: The name and address of the incorporator is:
/s/ Boniface Suleman Odiodio
- ----------------------------------------------------------------
Boniface Suleman Odiodio
P.O. Box 15155, Fort Worth,
TX 76119
55
<PAGE>
Exhibit D Directors meeting to issue the Corporate Bond Series 1 Floating
rate 1999 - 2024
MINUTES OF DIRECTORS' MEETINGS
INTERCONTINENTAL CAPITAL & INVESTMENT FUND, INC.
The Board of Directors of INTERCONTINENTAL CAPITAL & INVESTMENT
FUND, INC. held a regular meeting at the following time, date
and place:
Time: 10.00 AM, Date: Friday April 23,1999 Place: Fort Worth, TEXAS
The following individuals, constituting the entire membership
of the Board of directors, were present at the meeting:
MR BONIFACE SULEMAN ODIODIO and MR. JERMYN CHAN, and MR DAVID M. SWANNER.
The Corporation's President chaired the meeting, and David M.
Swanner, the Corporation's Secretary, served as Secretary of
the meeting. The Secretary read a waiver of notice of the
meeting that was signed by all of the directors and was
directed to attach the waiver of notice to the minutes of the
meeting. The Chairman announced that a quorum of the directors
was present and that the meeting could proceed with business.
The Secretary distributed copies of the minutes of the previous
regular meeting of the directors that had been held on 30th of
Sept. 1998, January 29, 1999 and upon a duly made and seconded
motion, the minutes of the aforesaid previous regular meeting
were approved.
Next, the Board heard the report of the Corporation's
President, and was advised that as of the close of business on
the 28th, day of February, 1999, the Corporation had net
profits of Zero Dollars and the Assets value $50,000.00 and no
Liabilities.
Upon a motion duly made and seconded and unanimously carried it
was then
RESOLVED, that a $5,000,000.00 Bond at $1,000.00 each for total
of 5,000 bonds be issued to the public as per instrument
attached to this minutes, and it is
FURTHER RESOLVED, that the President is hereby directed to
perform all act to issue said instrument and the Treasurer is
hereby directed to pay the expense for the issuance of the
instrument on behalf of the corporation, and it is
FURTHER RESOLVED, that the Bond once issued will be a binding
obligation of this corporation.
FURTHER RESOLVED, that the corporation indemnify the any and
all agents, attorneys, accountant, officers, employees,
directors and shareholders for any act performed in good faith
on behalf of the corporation in the issuance of the
$5,000,000.00 corporate Bond.
Upon a motion duly made and seconded and unanimously carried,
it was
RESOLVED, that the salary of the President and all vice
President of the Corporation are to be $50,000.00 Dollars each
per year, and that term for which his or her employment shall
continue under this resolution shall be one year. Next, upon
the conclusion of the vote on the above-described resolution,
the President and chairman presented to the meeting an
Indenture Agreement
Next, the Board considered the proposed agreement for the
Indenture Agreement that had been negotiated by the President
and it was
RESOLVED, that The Corporation should accept the proposed
agreement once dated and accepted by the Indenture Trustee a
copy of which is attached to the minutes of this meeting, and
by this Resolution directs the President to execute the
aforesaid agreement. As no other business was before the
meeting, a duly made and seconded motion to adjourn was
carried.
Next, the Board considered the proposed agreement for the Trust
Agreement that had been negotiated by the President and it was
56
<PAGE>
RESOLVED, that The Corporation should accept the proposed
agreement once dated and accepted by the Indenture Trustee and
Protector a copy of which is attached to the minutes of this
meeting, and by this Resolution directs the President to
execute the aforesaid agreement. As no other business was
before the meeting, a duly made and seconded motion to adjourn
was carried.
/s/ David M Swanner Jr
David M. Swanner, Jr
Secretary
57
<PAGE>
Exhibit E Resolution to appoint The Indenture Trustee
Custodial Agent, Transfer Agent, Registrar Agent, Paying Agent,
Conversion Agent and Escrow Agent for Bond Series 1
MINUTES OF DIRECTORS' MEETINGS
INTERCONTINENTAL CAPITAL & INVESTMENT FUND, INC
The Board of Directors of INTERCONTINENTAL CAPITAL & INVESTMENT
FUND, INC held a Special meeting at the following time, date
and place:
Time: 10.00 AM Date: April 27th 1999 Place: FORT WORTH, TEXAS
The following individuals, constituting the entire
membership of the Board of directors, were present at the meeting:
BONIFACE SULEMAN,
JERMYN CHAN,
DAVID M.SWANNER.
The Corporation's President chaired the meeting, and David M.
Swanner, the Corporation's Secretary, served as Secretary of
the meeting. The Secretary read a waiver of notice of the
meeting that was signed by all of the directors and was
directed to attach the waiver of notice to the minutes of the
meeting. The Chairman announced that a quorum of the directors
was present and that the meeting could proceed with business.
The Secretary distributed copies of the minutes of the previous
regular meeting of the directors that had been held on 29th of
January 1999 and April 23rd, 1999, and upon a duly made and
seconded motion, the minutes of the aforesaid previous regular
meeting were approved.
Upon a motion duly made to appoint Indenture Trustee for
corporate Bond Series 1 and seconded and unanimously carried,
it was then
RESOLVED, That Nevada First Holding Inc. be selected and
appointed as Indenture Trustee.
Upon a motion duly made to appoint Escrow Agent for corporate
Bond Series 1 and seconded and unanimously carried, it was then
RESOLVED, That U.S. Trust Company Texas, N.A. be selected and
appointed as Escrow Agent.
Upon a motion duly made to appoint Custodial Agent, Transfer
Agent, Registrar Agent, Paying Agent and Conversion Agent for
Bond Series 1 and seconded and unanimously carried, it was then
RESOLVED, That This corporation Intercontinental Capital &
Investment Fund Inc. be appointed as Custodial Agent, Transfer
Agent, Registrar Agent, Paying Agent and Conversion Agent for
Bond Series 1. And it is
FURTHER RESOLVED, That the Custodial Agent take custody of all
promissory notes to secure the bond series 1 and to purchase
any required guarantees under the Sinking Fund I & II.
There being no further business, Upon a duly made, seconded,
and carried motion, the meeting was adjourned.
/s/ David M. Swanner, Jr
David M. Swanner, Jr
Secretary
58
<PAGE>
Undertakings.
We the undersigned registrant hereby undertakes to file during
any period in which offer or sales are made, a post effective
amendment to this registration statement and include any
material information with respect to any material change to any
information in this registration statement.
We have provided information and documents as required under
section 310 of the Trust Indenture act of 1939 so as the
commission may determine the eligible to act as trustee. See:
"Statement of Eligibility of Trustee" We the undersigned
registrant hereby further undertakes to provide any additional
information that the commission may seek to determine the
eligibility of the trustee under indentures for securities to
be issued.
This public securities offer is registered with the SECURITIES
AND EXCHANGE COMMISSION (SEC) and its amendments and
regulations. Therefore, any additional information the we are
obligated to provide said Commission will be available for
public examination at the offices of the SECURITIES AND
EXCHANGE COMMISSION (SEC).
SIGNATURES
In accordance with the requirements of the Securities Act of
1933, the registrant certifies that it has reasonable grounds
to believe that it meets all of the requirements for filing on
Form SB-2 and authorized this registration statement to be
signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Fort Worth. State of Texas
On August 30th, 1999
INTERCONTINENTAL CAPITAL & INVESTMENT FUND INC.
(Registrant)
By /s/ Boniface Suleman Odiodio
____________________________________
(Signature and Title)
Pursuant to the requirements of the Securities Act of 1933,
this registration statement has been signed by the following
persons in the capacities and on the dates indicated.
Boniface Suleman Odiodio
_______________________________________
(Name)
/s/ Boniface Suleman Odiodio
_______________________________________
(Signature)
President
_______________________________________
(Title)
August 30, 1999
_______________________________________
(Date)
59
<PAGE>
Appendix A
Trust Indenture Agreement
60
<PAGE>
Nevada First Holdings Inc
An Incorporation & Consulting Firm
5130 S. Pecos Road Suite 2C
Las Vegas, Nevada 89120
Tel. (702) 320-5315, Fax (802) 320-5320
E-mail [email protected]
Web site WWW.travelersgroup.com
PRIVATE AND CONFIRDENTIAL
April 29, 1999
Mr. Boniface Suleman
President
Intercontinental Capital & Investment Fund, Inc.
4528 Pecos St.
Fort Worth, TX 76119
RE: Trustee for Indenture Agreement
Dear Mr. Suleman:
Please find the enclosed Indenture agreement signed and
notarized, we have prepared and enclosed a statement of
financial conditions, let us know if this is acceptable,
for this qualify us as trustee under section 12.09
"Variable provisions" of the Trust Indenture Agreement as
required by the minimum capital required by TIA section
310(a)(2)
Our Agreement is that upon funding of this Indenture, a
deposit of $10,000.00 will be required for the continued
activity of the trustee, An initial accounting will be
provided upon the completion of the first phase of this
project.
Please confirm receipt.
Respectfully
/s/ Wayne A. McMiniment
Wayne A. McMiniment
General Manager
WAM/ct
61
<PAGE>
Nevada First Holdings Inc
An Incorporation & Consulting Firm
5130 S. Pecos Road Suite 2C
Las Vegas, Nevada 89120
Tel. (702) 320-5315, Fax (802) 320-5320
E-mail [email protected]
Web site WWW.travelersgroup.com
April 29, 1999
Intercontinental Capital & Investment Fund, Inc.
RE: Trustee for Indenture Agreement
To whom it may concern
The following is a current financial statement for Nevada First
Holding, Inc.
Asset
Cash in Accounts $ 15,230.12
Real Estate $ 0
Investment Stock & Bonds $ 0
Building & Equipment $ 78,200.00
Receivable $ 36,453.00
Other Assets Mortgages $113,887.15
Corporations $ 24,500.00
Total Asset's $268,500.00
Liabilities & Stock Holders Equities
Accounts Payable (short Term) $ 4,753.00
Notes Payable (Lond Term) $ 57,321.15
Total Liabilities $ 62,074.15
Stockholder's Equities
Stock paid in $ 0
Paid in capital $206,196.12
Total Liabilities & Stock Holders Equities $268,500.00
/s/ Wayne A. McMiniment
Wayne A. McMiniment
General Manager
62
<PAGE>
THE TRUST INDENTURE AGREEMENT
INTERCONTINENTAL CAPITAL & INVESTMENT FUND, INC.
and
NEVADA FIRST HOLDINGS INC
Trustee
Dated as of APRIL 15, 1999
$5,000,000.00
Corporate Bond Series 1, Floating Rate Notes 1999-2024
INDENTURE dated as of April 15th, 1999, between
INTERCONTINENTAL CAPITAL & INVESTMENT FUND, INC., a Texas
corporation ("Company"), and NEVADA FIRST HOLDING INC.,
("Trustee").
Each party agrees as follows for the benefit of the other party
and for the equal and ratable benefit of the Holders of the
Company's Corporate Bond Series 1, Floating Rate Notes due 2024
("Securities"):
ARTICLE 1
Definitions and Rules of Construction;
Applicability of the Trust Indenture Act
Section 1.01 Definitions
"Affiliate" Any Person controlling or controlled by or under
common control with the Company. "Control" for this definition
means the power to direct the management and policies of a
Person, directly or indirectly, whether through the ownership
of voting securities, by contract, or otherwise. The terms
"controlling" and "controlled" have meanings correlative to the
foregoing.
"Agent" Any Registrar, Transfer Agent, Paying Agent or
Conversion Agent.
"Board" The Board of Directors of the Company or any officer or
committee thereof authorized to act for such Board.
"Business Day" A day that is not a Legal Holiday.
"Company" The party named as such above until a successor which
duly assumes the obligations upon the Securities and under the
Indenture replaces it and thereafter means the successor.
"Debt" means, with respect to any Person, (i) any obligation of
such Person to pay the principal of, premium of, if any,
interest on (including interest accruing on or after the filing
of any petition in bankruptcy or for reorganization relating to
the Company, whether or not a claim for such post-petition
interest is allowed in such proceeding), penalties,
reimbursement or indemnification amounts, fees, expenses or
other amounts relating to any indebtedness, and any other
liability, contingent or otherwise, of such Person (A) for
borrowed money (including instances where the recourse of the
lender is to the whole of the assets of such Person or to a
portion thereof), (B) evidenced by a note, debenture or similar
instrument (including a purchase money obligation) including
securities, (C) for any letter of credit or performance bond in
favor of such Person, or (D) for the payment of money relating
to a capitalized lease obligation; (ii) any liability of others
of the kind described in the preceding clause (i), which the
Person has guaranteed or which is otherwise its legal
liability; (iii) any obligation secured by a lien to which the
property or assets of such Person are subject, whether or not
the obligations secured thereby shall have been assumed by or
shall otherwise be such Person's legal liability; and (iv) any
and all deferrals, renewals, extensions and refunding of, or
amendments, modifications or supplements to, any liability of
the kind described in any of the preceding clauses (i), (ii) or
(iii).
"Default" Any event which is, or after notice or passage of
time would be, an Event of Default.
"Exchange Act" The Securities Exchange Act of 1934, as amended.
63
<PAGE>
"Holder" or "Securityholder" A Person in whose name a Security
is registered.
"Indenture" This Indenture as amended from time to time,
including the terms of the Securities and any amendments.
"Officers' Certificate" A certificate signed by two Officers,
one of whom must be the President, the Treasurer or a Vice-
President of the Company. See Sections 12.03 and 12.04.
"Opinion of Counsel" Written opinion from legal counsel who is
acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company or the Trustee. See Sections 12.03 and
12.04.
"Person" Any individual, corporation, partnership, joint
venture, association, limited liability company, joint stock
company, trust, unincorporated organization or government or
other agency or political subdivision thereof.
"Principal" of a Security means the principal of the Security
plus the premium, if any, on the Security which is due or
overdue or is to become due at the relevant time.
"Representative" The indenture trustee or other trustee, agent
or representative for an issue of Senior Debt.
"SEC" The Securities and Exchange Commission.
"Securities" The Securities described above issued under this
Indenture.
"Senior Debt" Debt of the Company, whenever incurred,
outstanding at any time except (i) Debt that by its terms is
not senior in right of payment to the Securities, and (ii) Debt
held by the Company or any Affiliate of the Company.
"TIA" The Trust Indenture Act of 1939, as amended, as in effect
on the date of this Indenture, except as provided in Sections
1.04 and 9.03.
"Trust Officer" The Chairman, the President or any other
officer or assistant officer of the Trustee assigned by the
Trustee to administer its corporate trust matters or to whom a
matter concerning the Indenture may be referred.
"Trustee" The party named as such above until a successor
replaces it and thereafter means the successor. See also
Section 11.14.
"U.S. Government Obligations" Securities that are direct,
noncallable, nonredeemable obligations of, or noncallable,
nonredeemable obligations guaranteed by, the United States of
America for the timely payment of which obligation or guarantee
the full faith and credit of the United States of America is
pledged.
Section 1.02 Other Definitions. Defined in Term Section
Term Defined in Section
"Bankruptcy Law" 6.01
"Cash Equivalents" 11.11
"Common Stock" 10.01
"Conversion Agent" 2.03
"Custodian" 6.01
"Defaulted Interest" 2.13
"Distribution" 11.14
"Event of Default" 6.01
"Junior Securities" 11.11
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Term Defined in Section
"Legal Holiday" 12.06
"Officer" 12.09
"Paying Agent" 2.03
"Payment Blockage Period" 11.14
"Payment Default" 11.03
"Payment Notice" 11.03
"Proceeding" 11.14
"Quoted Price" 10.11
"Registrar" 2.03
"Senior Debt Default Notice" 11.14
"Senior Debt Payment Default" 11.14
"Transfer Agent" 2.03
Section 1.03 Rules of Construction.
Unless the context otherwise requires:
1. a term defined in Sections 1.01 or 1.02 has the meaning
assigned to it therein, and terms defined in the TIA have
the meanings assigned to them in the TIA;
2. an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted
accounting principles in the United States;
3. "or" is not exclusive;
4. words in the singular include the plural, and words in the
plural include the singular;
5. provisions apply to successive events and transactions;
6. "herein," "hereof" and other words of similar import refer
to this Indenture as a whole and not to any particular
Article, Section or other subdivision; and
7. "including" means including without limitation.
Section 1.04 Trust Indenture Act.
The provisions of TIA ss.310 through 317 that impose duties on
any Person (including the provisions automatically deemed
included herein unless expressly excluded by this Indenture)
are a part of and govern this Indenture. If any provision of
this Indenture limits, qualifies or conflicts with such duties,
the imposed duties shall control. If a provision of the TIA
requires or permits a provision of this Indenture and the TIA
provision is amended, then the Indenture provision shall be
automatically amended to like effect.
ARTICLE 2
The Securities
Section 2.01 Form and Dating.
The Securities and the certificate of authentication shall be
substantially in the form of Exhibit A, which is hereby
incorporated in and expressly made a part of this Indenture.
The Securities may have notations, legends or endorsements
required by Section 2.11, law, stock exchange rule, automated
quotation system, agreements to which the Company is subject,
or usage. Each Security shall be dated the date of its
authentication.
Section 2.02 Execution and Authentication.
Two Officers shall sign the Securities for the Company by
manual or facsimile signature.
If an Officer whose signature is on a Security no longer holds
that office at the time the Security is authenticated, the
Security is still valid.
A Security shall not be valid until an authorized signatory of
the Trustee manually signs the certificate of authentication on
the Security. The signature shall be conclusive evidence that
the Security has been authenticated under this Indenture.
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The Trustee shall authenticate Securities for original issue up
to the amount stated in paragraph 4 of Exhibit A in accordance
with an Officers' Certificate of the Company. The aggregate
principal amount of Securities outstanding at any time may not
exceed that amount except as provided in Section 2.07.
The Trustee may appoint an authenticating agent acceptable to
the Company to authenticate Securities. An authenticating agent
may authenticate Securities whenever the Trustee may do so.
Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal
with the Company or an Affiliate.
Section 2.03 Agents.
The Company shall maintain an office or agency where Securities
may be authenticated ("Registrar"), where Securities may be
presented for registration of transfer or for exchange
("Transfer Agent"), where Securities may be presented for
payment ("Paying Agent") and where Securities may be presented
for conversion ("Conversion Agent"). Whenever the Company must
issue or deliver Securities pursuant to this Indenture, the
Trustee shall authenticate the Securities at the Company's
request. The Transfer Agent shall keep a register of the
Securities and of their transfer and exchange.
The Company may appoint more than one Registrar, Transfer
Agent, Paying Agent or Conversion Agent. The Company shall
notify the Trustee of the name and address of any Agent not a
party to this Indenture. If the Company does not appoint
another Registrar, Transfer Agent, Paying Agent, or Conversion
Agent, the Trustee shall act as such.
Section 2.04 Paying Agent To Hold Money in Trust.
On or prior to each due date of the Principal and interest on
any Security, the Company shall deposit with the Paying Agent a
sum sufficient to pay such Principal and interest when so
becoming due. The Company shall require each Paying Agent
(other than the Trustee) to agree in writing that the Paying
Agent will hold in trust for the benefit of Securityholders or
the Trustee all money held by the Paying Agent for the payment
of the Principal of or interest on the Securities and will
notify the Trustee of any Default by the Company in making any
such payment. While any such Default continues, the Trustee may
require a Paying Agent to pay all money held by it to the
Trustee. The Company at any time may require a Paying Agent to
pay all money held by it to the Trustee and to account for any
funds disbursed by the Paying Agent. Upon complying with this
Section, the Paying Agent shall have no further liability for
the money delivered to the Trustee. If the Company or any
Affiliate acts as Paying Agent, it shall segregate the money
held by it as Paying Agent and hold it as a separate trust
fund.
Section 2.05 Securityholder Lists.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of
the names and addresses of Securityholders. If the Trustee is
not the Registrar and Transfer Agent, the Company shall furnish
to the Trustee, in writing at least five Business Days before
each interest payment date and at such other times as the
Trustee may request a list in such form and as of such date as
the Trustee may reasonably require of the names and addresses
of Securityholders.
Section 2.06 Transfer and Exchange.
The Securities shall be issued in registered form and shall be
transferable only upon surrender of a Security for registration
of transfer. When a Security is presented to the Transfer Agent
with a request to register a transfer or to exchange them for
an equal principal amount of Securities of other denominations,
the Transfer Agent shall register the transfer or make the
exchange if its requirements for such transactions are met and
the Security has not been redeemed. The Company may charge a
reasonable fee for any registration of transfer or exchange but
not for any exchange pursuant to Section 2.10, 3.06, 9.05 or
10.02. All Securities issued upon any transfer or exchange
pursuant to the terms of this Indenture will evidence the same
debt and will be entitled to the same benefits under this
Indenture as the Securities surrendered upon such transfer or
exchange.
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Section 2.07 Replacement Securities.
If the Holder of a Security claims that the Security has been
lost, destroyed or wrongfully taken, then, in the absence of
notice to the Company that the Security has been acquired by a
protected purchaser, the Company shall issue a replacement
Security. If required by the Trustee or the Company, an
indemnity bond must be sufficient in the judgment of both to
protect the Company, the Trustee and the Agents from any loss
which any of them may suffer if a Security is replaced. The
Company or the Trustee may charge the Holder for its expenses
in replacing a Security. Every replacement Security is an
additional obligation of the Company.
Section 2.08 Outstanding Securities.
Securities outstanding at any time are all Securities
authenticated by the Trustee except for those canceled by the
Transfer Agent, those delivered to it for cancellation and
those described in this Section as not outstanding. A Security
does not cease to be outstanding because the Company or an
Affiliate holds the Security.
If a Security is replaced pursuant to Section 2.07, it ceases
to be outstanding unless the Company receives proof
satisfactory to it that the replaced Security is held by a
protected purchaser.
If Securities are considered paid under Section 4.01, they
cease to be outstanding and interest on them ceases to accrue.
Section 2.09 Treasury Securities Disregarded for Certain
Purposes.
In determining whether the Holders of the required Principal
amount of Securities have concurred in any direction, waiver or
consent, Securities owned by the Company or an Affiliate shall
be disregarded and deemed not to be outstanding, except that,
for the purposes of determining whether the Trustee shall be
protected in relying on any such direction, waiver or consent,
only Securities which the Trustee knows are so owned shall be
so disregarded. [Securities so owned which have been pledged in
good faith shall not be disregarded if the pledgee establishes
to the satisfaction of the Trustee the pledgee's right to
deliver any such direction, waiver or consent with respect to
the Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the
Company or of such other obligor.]
Section 2.10 Temporary Securities.
Until definitive Securities are ready for delivery, the Company
may use temporary Securities. Temporary Securities shall be
substantially in the form of definitive Securities but may have
variations that the Company considers appropriate for temporary
Securities. Without unreasonable delay, the Company shall
deliver definitive Securities in exchange for temporary
Securities.
[Section 2.11 Global Securities.
The Company may issue some or all of the Securities in
temporary or permanent global form. The Company may issue a
global Security only to a depository. A depository may transfer
a global Security only to its nominee or to a successor
depository. A global Security shall represent the amount of
Securities specified in the global Security. A global Security
may have variations that the depository requires or that the
Company considers appropriate for such a security.
Beneficial owners of part or all of a global Security are
subject to the rules of the depository as in effect from time
to time.
The Company, the Trustee and the Agents shall not be
responsible for any acts or omissions of a depository, for any
depository records of beneficial ownership interests or for any
transactions between the depository and beneficial owners.]
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Section 2.12 Cancellation.
The Company at any time may deliver Securities to the Transfer
Agent for cancellation. The Paying Agent and Conversion Agent
shall forward to the Transfer Agent any Securities surrendered
to them for payment or conversion. The Transfer Agent shall
cancel all Securities surrendered for registration of transfer,
exchange, payment, conversion or cancellation and shall dispose
of canceled Securities as the Company directs. The Company may
not issue new Securities to replace Securities that it has paid
or which have been delivered to the Transfer Agent for
cancellation or that any Securityholder has converted.
Section 2.13 Defaulted Interest.
If the Company Defaults in a payment of interest on the
Securities ("Defaulted Interest") such Defaulted Interest shall
cease to be payable to the Securityholder on the relevant
record date and shall be paid by the Company, at its election,
under either (1) or (2) below:
(1) The Company may pay the Defaulted Interest to the Persons
which are Securityholders on a subsequent special record
date. The Company shall notify the Trustee of the amount of
Defaulted Interest to be paid and pay over such amount to
the Trustee. The Trustee shall then fix a special record
date and at the Company's expense shall notify
Securityholders not less than 10 days prior to such special
record date of the proposed payment, of the special record
date, and of the payment date.
(2) The Company may make payment of Defaulted Interest in any
lawful manner not inconsistent with the requirements of any
securities exchange or automated quotation system on which
the Securities may be listed or designated for issuance.
ARTICLE 3
Redemption
Section 3.01 Notice to Trustee.
If Securities are to be redeemed, the Company shall notify the
Trustee of the redemption date, the Principal amount of
Securities to be redeemed and the provision of the Securities
permitting or requiring the redemption.
The Company may reduce the Principal amount of Securities
required to be redeemed pursuant to Paragraph Six of the
Securities if it notifies the Trustee of the amount of the
credit and the basis for it by delivery of an Officers'
Certificate. If the reduction is based on a credit for redeemed
or canceled Securities, or Securities that the Company has not
previously delivered to the Transfer Agent for cancellation,
the Company shall deliver such Securities to the Transfer Agent
before the notice of redemption is mailed to Holders.
The Company shall give each notice provided for in this Section
at least 50 days before the redemption date unless a shorter
period is satisfactory to the Trustee. [If fewer than all the
Securities are to be redeemed, the record date relating to such
redemption shall be selected by the Company and given to the
Trustee, which record date shall be not less than 15 days after
the date of notice to the Trustee.]
Section 3.02 Selection of Securities To Be Redeemed.
If less than all the Securities are to be redeemed, the Trustee
shall select the Securities to be redeemed by a method that
complies with the requirements, if any, of any stock exchange
on which the Securities are listed and that the Trustee
considers fair and appropriate, which may include selection pro
rata or by lot. The Trustee shall make the selection from
Securities outstanding not previously called for redemption.
The Trustee may select for redemption portions of the Principal
of Securities that have denominations larger than $1000.
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Securities and portions thereof selected by the Trustee shall
be in amounts of $1000 or whole multiples of $1000. Provisions
of this Indenture that apply to Securities called for
redemption also apply to portions of Securities called for
redemption.
Section 3.03 Notice of Redemption.
At least 30 days but not more than 60 days before a redemption
date, the Company shall mail a notice of redemption to each
Holder whose Securities are to be redeemed.
The notice shall identify the Securities to be redeemed and
shall state:
(1) the redemption date;
(2) the redemption price;
(3) the conversion price;
(4) the name and address of the Paying Agent and Conversion Agent;
(5) that convertible Securities called for redemption may be
converted at any time before the close of business on the
Business Day immediately preceding the redemption date;
(6) that Holders who want to convert Securities must satisfy
the requirements for conversion set forth in the Securities;
(7) that Securities called for redemption must be surrendered
to the Paying Agent to collect the redemption price;
(8) that, unless the Company Defaults in making such
redemption payment or the Paying Agent is prohibited from
making such payment pursuant to the terms of this Indenture,
interest on Securities (or portion thereof) called for
redemption ceases to accrue on and after the redemption
date; and
(9) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice
or printed on the Securities.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense.
Section 3.04 Effect of Notice of Redemption.
Once notice of redemption is mailed, Securities called for
redemption become due and payable on the redemption date at the
redemption price. Upon surrender to the Paying Agent, such
Securities shall be paid at the redemption price stated in the
notice, plus accrued interest to the redemption date. Failure
to give notice or any defect in the notice to any Holder shall
not affect the validity of the notice to any other Holder.
Section 3.05 Deposit of Redemption Price.
On or before the redemption date, the Company shall deposit
with the Paying Agent (or, if the Company or any Affiliate is
the Paying Agent, shall segregate and hold in trust) money
sufficient to pay the redemption price of and accrued interest
on all Securities to be redeemed on that date other than
Securities or portions of Securities called for redemption
which have been delivered by the Company to the Transfer Agent
for cancellation. The Paying Agent shall return to the Company
any money not required for that purpose because of conversion
of Securities.
Unless the Company shall Default in the payment of Securities
(and accrued interest) called for redemption, interest on such
Securities shall cease to accrue after the redemption date.
Securities called for redemption shall cease to be convertible
after the close of business on the Business Day immediately
preceding the redemption date, unless the Company shall Default
in the payment of such Securities on the redemption date, in
which event the Securities shall remain convertible until paid
(together with accrued interest).
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Section 3.06 Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part, the
Company shall deliver to the Holder (at the Company's expense)
a new Security equal in Principal amount to the unredeemed
portion of the Security surrendered.
ARTICLE 4
Covenants
Section 4.01 Payment of Securities.
The Company shall pay the Principal of and interest on the
Securities on the dates and in the manner provided in the
Securities and this Indenture. Principal and interest shall be
considered paid on the date due if the Paying Agent holds in
accordance with this Indenture on that date money sufficient to
pay all Principal and interest then due and the Paying Agent is
not prohibited from paying such money to the Holders on such
date pursuant to the terms of this Indenture.
The Company shall pay interest on overdue Principal at the rate
borne by the Securities; it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
Section 4.02 SEC Reports.
The Company shall file with the Trustee within 15 days after it
files them with the SEC copies of the annual reports and of the
information, documents, and other reports which the Company is
required to file with the SEC pursuant to Section 13 or 15(d)
of the Exchange Act. The Company will cause any quarterly and
annual reports which it makes available to its stockholders to
be mailed to the Holders. The Company will also comply with the
other provisions of TIA ss. 314(a). Delivery of such reports,
information and documents to the Trustee is for informational
purposes only and the Trustee's receipt of such shall not
constitute notice or constructive notice of any information
contained therein or determinable from information contained
therein, including the Company's compliance with any of its
covenants hereunder (as to which the Trustee is entitled to
rely exclusively on Officer's Certificates).
Section 4.03 Compliance Certificate.
The Company shall deliver to the Trustee, within [105] days
after the end of each fiscal year of the Company, a brief
certificate signed by the principal executive officer,
principal financial officer or principal accounting officer of
the Company, as to the signer's knowledge of the Company's
compliance with all conditions and covenants contained in this
Indenture (determined without regard to any period of grace or
requirement of notice provided herein).
Section 4.04 Notice of Certain Events.
The Company shall give prompt written notice to the Trustee and
any Paying Agent of (i) any Proceeding, (ii) any default or
event of default, and any cure or waiver thereof, (iii) any
acceleration of any Senior Debt, and (iv) if and when the
Securities are listed on any stock exchange.
ARTICLE 5
Successors
Section 5.01 When Company May Merge, etc.
The Company shall not consolidate or merge with or into, or
transfer all or substantially all of its assets to, any Person
unless:
(1) either the Company shall be the resulting or surviving
entity or such Person is a corporation organized and
existing under the laws of the United States, a State
thereof or the District of Columbia;
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(2) if the Company is not the resulting or surviving entity,
such Person assumes by supplemental indenture all the
obligations of the Company under the Securities and this
Indenture, except that it need not assume the obligations of
the Company as to conversion of Securities if pursuant to
Section 10.17 the Company or another Person enters into a
supplemental indenture obligating it to deliver securities,
cash or other assets upon conversion of Securities; and
(3) immediately before and immediately after the transaction
no Default exists.
The Company shall deliver to the Trustee prior to the proposed
transaction an Officers' Certificate and an Opinion of Counsel,
each of which shall state that such consolidation, merger or
transfer and such supplemental indenture comply with this
Article 5 and that all conditions precedent herein provided for
relating to such transaction have been complied with.
Section 5.02 Successor Corporation Substituted.
Upon any consolidation or merger, or any transfer of all or
substantially all of the assets of the Company in accordance
with Section 5.01, the successor corporation formed by such
consolidation or into which the Company is merged or to which
such transfer is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Company under
this Indenture and the Securities with the same effect as if
such successor corporation had been named as the Company herein
and in the Securities.
ARTICLE 6
Defaults and Remedies
Section 6.01 Events of Default.
An "Event of Default" occurs if:
(1) the Company Defaults in the payment of interest on any
Security when the same becomes due and payable and such
Default continues for a period of [30] days;
(2) the Company Defaults in the payment of the Principal of
any Security when the same becomes due and payable at
maturity, upon redemption or otherwise;
(3) the Company fails to comply with any of its other
agreements in the Securities or this Indenture and such
failure continues for the period and after the notice
specified below;
(4) the Company pursuant to or within the meaning of any
Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it in
an involuntary case,
(C) consents to the appointment of a Custodian of it or for
all or substantially all of its property, or
(D) makes a general assignment for the benefit of its
creditors; or
(5) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Company in an involuntary case,
(B) appoints a Custodian of the Company or for all or
substantially all of its property, or
(C) orders the liquidation of the Company, and the order or
decree remains unstayed and in effect for 60 days.
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The foregoing will constitute Events of Default whatever the
reason for any such Event of Default and whether it is
voluntary or involuntary or is effected by operation of law or
pursuant to any judgment, decree or order of any court or any
order, rule or regulation of any administrative or governmental
body.
The term "Bankruptcy Law" means title 11, U.S. Code or any
similar Federal or state law for the relief of debtors. The
term "Custodian" means any receiver, trustee, assignee,
liquidator or similar official under any Bankruptcy Law.
A Default under clause (3) is not an Event of Default until the
Trustee or the Holders of at least 25% in Principal amount of
the Securities notify the Company and the Trustee of the
Default and the Company does not cure the Default within [60]
days after receipt of the notice. The notice must specify the
Default, demand that it be remedied to the extent consistent
with law, and state that the notice is a "Notice of Default".
Section 6.02 Acceleration.
If an Event of Default occurs and is continuing, the Trustee by
notice to the Company, or the Holders of at least 25% in
Principal amount of the Securities by notice to the Company and
the Trustee, may declare the Principal of and accrued interest
on all the Securities to be due and payable. Upon such
declaration the Principal and interest shall be due and payable
immediately.
The Holders of a majority in Principal amount of the Securities
by notice to the Company and the Trustee may rescind an
acceleration and its consequences if the rescission would not
conflict with any judgment or decree and if all existing
Events of Default have been cured or waived except nonpayment
of Principal or interest that has become due solely because of
the acceleration.
Section 6.03 Other Remedies.
If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy to collect the payment of
Principal or interest on the Securities or to enforce the
performance of any provision of the Securities or this
Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Securities or does not produce any of them
in the proceeding. A delay or omission by the Trustee or any
Securityholder in exercising any right or remedy accruing upon
an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default.
All remedies are cumulative to the extent permitted by law.
Section 6.04 Waiver of Past Defaults.
The Holders of a majority in Principal amount of the Securities
by notice to the Trustee may waive an existing Default and its
consequences except:
(1) a Default in the payment of the Principal of or interest
on any Security;
(2) a Default with respect to a provision that under Section
9.02 cannot be amended without the consent of each
Securityholder affected; or
(3) a Default under Article 10.
Section 6.05 Control by Majority.
The Holders of a majority in Principal amount of the Securities
may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee.
However, the Trustee may refuse to follow any direction that
conflicts with law or this Indenture, is unduly prejudicial to
the rights of other Securityholders, or would involve the
Trustee in personal liability [for which the Trustee has not
received a satisfactory indemnity therefor].
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Section 6.06 Limitation on Suits.
A Securityholder may pursue a remedy with respect to this
Indenture or the Securities only if:
(1) the Holder gives to the Trustee notice of a continuing
Event of Default;
(2) the Holders of at least 25% in Principal amount of the
Securities make a request to the Trustee to pursue the
remedy and offers to the Trustee indemnity satisfactory to
the Trustee against any loss, liability or expense;
(3) the Trustee either (i) gives to such Holders notice it
will not comply with the request, or (ii) does not comply
with the request within [30] days after receipt of the
request and the offer of indemnity; and
(4) the Holders of a majority in Principal amount of the
Securities do not give the Trustee a direction inconsistent
with the request prior to the earlier of the date, if ever,
on which the Trustee delivers a notice under Section
6.06(3)(i) or the expiration of the period described in
Section 6.06(3)(ii).
A Securityholder may not use this Indenture to prejudice the
rights of another Securityholder or to obtain a preference or
priority over another Securityholder.
Section 6.07 Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the
right of any Holder of a Security to receive payment of
Principal and interest on the Security, on or after the
respective due dates expressed in the Security, or to bring
suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the
consent of the Holder. Notwithstanding any other provision of
this Indenture, the right of any Holder of a Security to bring
suit for the enforcement of the right to convert the Security
shall not be impaired or affected without the consent of the
Holder.
Nothing in this Indenture limits or defers the right or ability
of Holders to petition for commencement of a case under
applicable Bankruptcy Law to the extent consistent with such
Bankruptcy Law.
Section 6.08 Priorities.
If the Trustee collects any money pursuant to this Article, it
shall pay out the money in the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: to holders of Senior Debt to the extent required by
Article 11;
Third: to Securityholders for amounts due and unpaid on the
Securities for Principal and interest, ratably, without
preference or priority of any kind, according to the amounts
due and payable on the Securities for Principal and interest,
respectively; and
Fourth: to the Company.
The Trustee may fix a record date and payment date for any
payment to Securityholders.
Section 6.09 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any
action taken or omitted by it as Trustee, a court in its
discretion may require the filing by any party litigant in the
suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in the
suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section
does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.07 or a suit by Holders of more than 10%
in Principal amount of the Securities.
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Section 6.10 Proof of Claim.
In the event of any Proceeding, the Trustee may immediately
file a claim for the unpaid balance of its Securities in the
form required in the Proceeding and cause the claim to be
approved or allowed. Nothing herein contained shall be deemed
to authorize the Trustee or the holders of Senior Debt to
authorize or consent to or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement,
adjustment, or composition affecting the Securities or the
rights of any Holder thereof, or to authorize the Trustee or
the holders of Senior Debt to vote in respect of the claim of
any Securityholder in any Proceeding.
Section 6.11 Actions of a Holder.
For the purpose of providing any consent, waiver or instruction
to the Company or a Trustee, a "Holder" or "Securityholder"
shall include a person who provides to the Company or a
Trustee, as the case may be, an affidavit of beneficial
ownership of a Security together with a satisfactory indemnity
against any loss, liability or expense to such party to the
extent that it acts upon such affidavit of beneficial ownership
(including any consent, waiver or instructions given by a
Person providing such affidavit and indemnity).
ARTICLE 7
Trustee
Section 7.01 Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested
in it by this Indenture, and use the same degree of care and
skill in their exercise, as a prudent Person would exercise
or use under the circumstances in the conduct of his or her
own affairs.
(b) Except during the continuance of an Event of Default:
(1) The Trustee need perform only those duties that are
specifically set forth in this Indenture and no others.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture. However,
the Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements
of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its
own willful misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b)
of this Section.
(2) The Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer, unless it is proved
that the Trustee was negligent in ascertaining the
pertinent facts.
(3) The Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with
a direction received by it pursuant to Section 6.05.
(4) The Trustee may refuse to perform any duty or exercise any
right or power which would require it to expend its own
funds or risk any liability if it shall reasonably believe
that repayment of such funds or adequate indemnity against
such risk is not reasonably assured to it.
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(d) Every provision of this Indenture that in any way relates
to the Trustee is subject to paragraphs (a), (b) and (c) of
this Section.
(e) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree with the
Company. Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by
law.
Section 7.02 Rights of Trustee.
(a) The Trustee may rely on any document believed by it to be
genuine and to have been signed or presented by the proper
Person. The Trustee need not investigate any fact or matter
stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel.
The Trustee shall not be liable for any action it takes or
omits to take in good faith in reliance on the Certificate
or Opinion.
(c) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent
appointed with due care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be
authorized or within its rights or powers.
(e) Except in connection with compliance with TIA ss.310 or
ss.311, the Trustee shall only be charged with knowledge of
Trust Officers.
Section 7.03 Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Securities and may otherwise deal with
the Company or an Affiliate with the same rights it would have
if it were not Trustee. Any Agent may do the same with like
rights. However, the Trustee is subject to TIA ss.310(b) and
ss.311.
Section 7.04 Trustee's Disclaimer.
The Trustee shall have no responsibility for the validity or
adequacy of this Indenture or the Securities, it shall not be
accountable for the Company's use of the proceeds from the
Securities and it shall not be responsible for any statement in
the Securities other than its authentication.
Section 7.05 Notice of Defaults.
If a continuing Default is known to the Trustee, the Trustee
shall mail to Securityholders a notice of the Default within 90
days after it occurs. Except in the case of a Default in
payment on any Security, the Trustee may withhold the notice if
and so long as a committee of its Trust Officers in good faith
determines that withholding the notice is in the interests of
Securityholders.
Section 7.06 Reports by Trustee to Holders.
If required pursuant to TIA ss.313(a), within 60 days after the
reporting date stated in Section 12.09, the Trustee shall mail
to Securityholders a brief report dated as of such reporting
date that complies with TIA ss.313(a). The Trustee also shall
comply with TIA ss.313(b)(2). A copy of each report at the time
of its mailing to Securityholders shall be filed with the SEC
and each stock exchange on which the Securities are listed.
Section 7.07 Compensation and Indemnity.
The Company shall pay to the Trustee from time to time
reasonable compensation for its services, including for any
Agent capacity in which it acts. The Trustee's compensation
shall not be limited by any law on compensation of a trustee of
an express trust. The Company shall reimburse the Trustee upon
request for all reasonable out-of-pocket expenses incurred by
it. Such expenses shall include the reasonable compensation and
out-of-pocket expenses of the Trustee's agents and counsel.
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The Company shall indemnify the Trustee against any loss,
liability or expense incurred by it. The Trustee shall notify
the Company promptly of any claim for which it may seek
indemnity. The Company shall defend the claim and the Trustee
shall cooperate in the defense. The Trustee may have separate
counsel and the Company shall pay the reasonable fees and
expenses of such counsel. The Company need not pay for any
settlement made without its consent, not unreasonably to be
withheld.
The Company need not reimburse any expense or indemnify against
any loss or liability incurred by the Trustee through gross
negligence or bad faith.
To secure the Company's payment obligations in this Section,
the Trustee shall have a lien prior to the Securities on all
money or property held or collected by the Trustee, except that
held in trust to pay Principal and interest on particular
Securities.
Without prejudice to its rights hereunder, when the Trustee
incurs expenses or renders services after an Event of Default
specified in Section 6.01(4) or (5) occurs, the expenses and
the compensation for the services are intended to constitute
expenses of administration under any Bankruptcy Law.
Section 7.08 Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the
successor Trustee's acceptance of appointment as provided in
this Section.
The Trustee may resign by so notifying the Company. The Holders
of a majority in Principal amount of the Securities may remove
the Trustee by so notifying the Trustee and the Company. The
Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or public officer takes charge of the Trustee or
its property; or
(3) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall
promptly appoint a successor Trustee.
If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring
Trustee, the Company or, subject to Section 6.09, any
Securityholder may petition any court of competent jurisdiction
for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any
Securityholder may petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a
successor Trustee. Within one year after a successor Trustee
appointed by the Company or a court pursuant to this Section
7.08 takes office, the Holders of a majority in Principal
amount of the Securities may appoint a successor Trustee to
replace such successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company.
Thereupon the resignation or removal of the retiring Trustee
shall become effective, and the successor Trustee shall have
all the rights, powers and duties of the Trustee under this
Indenture. The successor Trustee shall mail a notice of its
succession to Securityholders. The retiring Trustee shall
promptly transfer all property held by it as Trustee to the
successor Trustee, subject to the lien provided for in Section
7.07.
Section 7.09 Successor Trustee by Merger, etc.
If the Trustee consolidates, merges or converts into, or
transfers all or substantially all of its corporate trust
business to, another corporation, the successor corporation
without any further act shall be the successor Trustee, if such
successor corporation is eligible and qualified under Section
7.10.
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Section 7.10 Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA ss.310(a)(1) and ss.310(a)(2). The Trustee
shall always have a combined capital and surplus as stated in
Section 12.09. The Trustee is subject to TIA ss.310(b).
Section 7.11 Preferential Collection of Claims Against Company.
Upon and so long as the Indenture is qualified under the TIA,
the Trustee is subject to TIA ss.311(a), excluding any creditor
relationship listed in TIA ss. 311(b). A Trustee who has resigned
or been removed is subject to TIA ss.311(a) to the extent
indicated.
ARTICLE 8
Satisfaction and Discharge
Section 8.01 Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except as
to any surviving rights of conversion, registration of transfer
or exchange of Securities herein expressly provided for), and
the Trustee, on demand of and at expense of the Company, shall
execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(a) all Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost
or stolen and which have been replaced or paid as provided
in Section 2.07 and (ii) Securities for whose payment money
has theretofore been deposited in trust or segregated and
held in trust by the Company and thereafter repaid to the
Company or discharged from such trust, as provided in
Section 8.04) have been delivered to the Trustee for
cancellation; or
(b) all such Securities not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their stated maturity
within one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving
of notice of redemption by the Trustee in the name, and
at the expense, of the Company, and the Company in the
case of (i), (ii), and (iii) above, has deposited or
caused to be deposited with the Trustee as trust funds
in trust for the purpose an amount sufficient to pay
and discharge the entire indebtedness on such
Securities not theretofore delivered to the Trustee for
cancellation, for Principal and interest to the date of
such deposit (in the case of Securities which have
become due and payable) or to the stated maturity or
redemption date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been
complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Holders under
Section 4.01, to the Trustee under Section 7.07, and, if money
shall have been deposited with the Trustee pursuant to
subclause (B) of Clause (1) of this Section, the obligations of
the Trustee under Section 8.02 shall survive.
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Section 8.02 Application of Trust Money.
The Trustee or Paying Agent shall hold in trust, for the
benefit of the Holders, all money and U.S. Government
Obligations deposited with it pursuant to Section 8.01. It
shall apply the deposited money and money from U.S. Government
Obligations in accordance with this Indenture to the payment of
the Principal and interest on the Securities. Money and U.S.
Government Obligations so held in trust (i) are not subject to
Article 11, and (ii) are subject to the Trustee's rights under
Section 7.07.
Section 8.03 Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or
U.S. Obligations in accordance with Section 8.01 by reason of
any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this
Indenture and the Securities shall be revived and reinstated as
though no deposit had occurred pursuant to this Article 8,
until such time as the Trustee or Paying Agent is permitted to
apply all such money in accordance with Section 8.01; provided,
however, that if the Company makes any payment of Principal of
or interest on any Security following the reinstatement of its
obligations, the Company shall be subrogated to the rights of
the Holders of such Securities to receive such payment from the
money held by the Trustee or Paying Agent after payment in full
to the Holders.
Section 8.04 Repayment to Company.
The Trustee and Paying Agent shall promptly turn over to the
Company upon request any excess money or U.S. Government
Obligations held by them at any time. All money deposited with
the Trustee pursuant to Section 8.01 (and held by it or a
Paying Agent) for the payment of Securities subsequently
converted shall be returned to the Company upon request.
The Trustee and the Paying Agent shall pay to the Company upon
request any money held by them for payment of Principal or
interest that remains unclaimed for two years after the right
to such money has matured. After payment to the Company,
Securityholders entitled to the money shall look to the Company
for payment as unsecured general creditors unless an abandoned
property law designates another Person.
ARTICLE 9
Amendments
Section 9.01 Without Consent of Holders.
The Company and the Trustee may amend this Indenture or the
Securities without the consent of any Securityholder:
(1) to cure any ambiguity, defect or inconsistency;
(2) to comply with Sections 5.01 and 10.17; or
(3) to make any change that does not adversely affect the
rights of any Securityholder.
Section 9.02 With Consent of Holders.
The Company and the Trustee may amend this Indenture or the
Securities with the written consent of the Holders of at least
a majority in Principal amount of the Securities. However,
without the consent of each Securityholder affected, an
amendment under this Section may not:
(1) reduce the amount of Securities whose Holders must consent
to an amendment;
(2) reduce the interest on or change the time for payment of
interest on any Security;
(3) reduce the Principal of or change the fixed maturity of
any Security;
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(4) reduce the premium payable upon the redemption of any
Security or change the time at which any Security may or
shall be redeemed;
(5) make any Security payable in money other than that stated
in the Security;
(6) make any change in Section 6.04, 6.07 or 9.02 (second
sentence);
(7) make any change that adversely affects the right to
convert any Security; or
(8) make any change in Article 11 that adversely affects the
rights of any Securityholder.
It shall not be necessary for the consent of the Holders under
this Section to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent approves
the substance thereof.
An amendment under this Section may not make any change that
adversely affects the rights under Article 11 of any holder of
an issue of Senior Debt unless the holders of the issue
pursuant to its terms consent to the change.
Section 9.03 Compliance with Trust Indenture Act.
Every amendment to this Indenture or the Securities shall
comply with the TIA as then in effect [ so long as the
Indenture and Securities are subject to the TIA].
Section 9.04 Revocation and Effect of Consents and Waivers.
A consent to an amendment or a waiver by a Holder of a Security
shall bind the Holder and every subsequent Holder of that
Security or portion of the Security that evidences the same
debt as the consenting Holder's Security, even if notation of
the consent or waiver is not made on the Security. However, any
such Holder or subsequent Holder may revoke the consent or
waiver as to such Holder's Security or portion of the Security
if the Trustee receives the notice of revocation before the
date the amendment or waiver becomes effective. After an
amendment or waiver becomes effective, it shall bind every
Securityholder.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Securityholders
entitled to give their consent or take any other action
described above or required or permitted to be taken pursuant
to this Indenture. If a record date is fixed, then
notwithstanding the immediately preceding paragraph, those
Persons who were Securityholders at such record date (or their
duly designated proxies), and only those Persons, shall be
entitled to give such consent or to revoke any consent
previously given or take any such action, whether or not such
Persons continue to be Holders after such record date. No such
consent shall be valid or effective for more than 120 days
after such record date.
Section 9.05 Notice of Amendment; Notation on or Exchange of Securities.
After any amendment under this Article becomes effective, the
Company shall mail to Securityholders a notice briefly
describing such amendment. The failure to give such notice to
all Securityholders, or any defect therein, shall not impair or
affect the validity of an amendment under this Article. The
Company or the Trustee may place an appropriate notation about
an amendment or waiver on any Security thereafter
authenticated. The Company may issue in exchange for affected
Securities new Securities that reflect the amendment or waiver.
Section 9.06 Trustee Protected.
The Trustee need not sign any supplemental indenture that
adversely affects its rights.
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ARTICLE 10
Conversion
Section 10.01 Nonconvertibility.
The securities are not convertible to the common stock of the Company.
Section 10.02 Detachable Warrants.
No detachable warrants of any type are attached to the
Securities, under this indenture agreement.
ARTICLE 11
Subordination
Section 11.01 Securities Subordinated to Senior Debt.
The rights of Holders to payment of the principal of and
interest on the Securities is subordinated to the rights of
holders of Senior Debt of the Company, to the extent and in the
manner provided in this Article 11.
Section 11.02 Securities Subordinated Upon Dissolution,
Winding-up, Liquidation, or Reorganization.
Upon any Distribution in any Proceeding,
(1) any Distribution to which the Holders are entitled (by
set-off or otherwise) shall be paid directly to the holders
of Senior Debt to the extent necessary to make payment in
full of all Senior Debt remaining unpaid after giving effect
to all Distributions to or for the benefit of the holders of
Senior Debt; and
(2) in the event that any Distribution is received by the
Trustee before all Senior Debt is paid in full, such
Distribution shall be held in trust by the Trustee for the
benefit of the holders of Senior Debt to the extent
necessary to make payment in full of all Senior Debt
remaining unpaid after giving effect to all payments and
distributions to the holders of Senior Debt.
Section 11.03 No Payment on Securities in Certain Circumstances.
The Company shall not, directly or indirectly (other than in
capital stock of the Company) pay any principal of or interest
on, redeem or repurchase any of the Securities (i) after any
Senior Debt becomes due and payable, unless and until all such
Senior Debt shall first be paid in full or (ii) after a Senior
Debt Payment Default, unless and until such Senior Debt Payment
Default has been cured, waived, or otherwise has ceased to
exist.
After a Senior Debt Default Notice is given to the Company and
the Trustee, no payment of any principal of or interest on the
Securities may be made, directly or indirectly by the Company
during the Payment Blockage Period. Unless the Senior Debt in
respect of which the Senior Debt Default Notice has been given
has been declared due and payable in its entirety within the
Payment Blockage Period, at the end of the Payment Blockage
Period, the Company shall pay all sums not paid to the Holders
during the Payment Blockage Period and resume all other
payments as and when due. Any number of Senior Debt Default
Notices may be given; provided, however, that [as to any issue
of Senior Debt] (i) not more than one Senior Debt Default
Notice shall be given within a period of any [366] consecutive
days, and (ii) no specific act, omission, or condition that
gave rise to a default that existed upon the date of such Senior
Debt Default Notice or the commencement of such Payment Blockage
Period (whether or not such default applies to the same issue of
Senior Debt) shall be made the basis for the commencement of any
other Payment Blockage Period.
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If any Distribution, payment or deposit to redeem, defease or
acquire any of the Securities shall have been received by the
Trustee at a time when such Distribution was prohibited by the
provisions of this Section 11.03, then, unless such
Distribution is no longer prohibited by this Section 11.03,
such Distribution shall be received and held in trust by the
Trustee for the benefit of the holders of Senior Debt, and
shall be paid or delivered by the Trustee to the holders of
Senior Debt for application to the payment of all Senior Debt.
Section 11.04 Subrogation.
The Holders shall not have any subrogation or other rights of
recourse to any security in respect of any Senior Debt until
such time as all Senior Debt shall have been paid in full. Upon
the payment in full of all Senior Debt, the Holders shall be
subrogated to the rights of the holders of Senior Debt to
receive Distributions applicable to Senior Debt until all
amounts owing in respect of the Securities shall be so paid. No
Distributions to the holders of Senior Debt which otherwise
would have been made to the Holders shall, as between the
Company and the Holders, be deemed to be payment by the Company
to or on account of Senior Debt.
If any Distribution to which the Holders would otherwise have
been entitled shall have been applied pursuant to the
provisions of this Article to the payment of Senior Debt, then
the Holders shall be entitled to receive from the holders of
such Senior Debt any Distributions received by such holders of
Senior Debt in excess of the amount sufficient to pay all
principal and interest payable on such Senior Debt to the
extent provided herein.
Section 11.05 Obligations of the Company Unconditional.
This Article defines the relative rights of the Holders and
holders of Senior Debt. Nothing in this Indenture is intended
to or shall impair, as between the Company and the Holders, the
obligation of the Company, which is absolute and unconditional,
to pay to the Holders the principal of and interest on the
Securities as and when the same shall become due and payable in
accordance with their terms, or is intended to or shall affect
the relative rights of the Holders and creditors of the
Company, other than the holders of Senior Debt, nor shall
anything herein or in the Securities prevent the Trustee or any
Holder from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to
the rights, if any, under this Article 11, of the holders of
Senior Debt in respect of any Distribution received upon the
exercise of any such remedy. If the Company fails because of
this Article to pay principal of or interest on a Security on
the due date, the failure is still a Default. Upon any
Distribution, the Trustee and the Holders shall be entitled to
rely upon any order or decree made by any court of competent
jurisdiction in which the Proceeding is pending, or a
certificate of the liquidating trustee or agent or other Person
making any Distribution for the purpose of ascertaining the
Persons entitled to participate in such Distribution, the
holders of Senior Debt and other Debt of the Company, the
amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or
to this Article 11.
Section 11.06 Trustee and Paying Agent Entitled to Assume
Payments Not Prohibited in Absence of Notice.
The Trustee shall not at any time be charged with knowledge of
the existence of any facts which would prohibit the making of
any payment to or by the Trustee, unless and until the Trustee
shall have received, no later than 30 Business Day[s] prior to
such payment, written notice thereof from the Company or from
one or more holders of Senior Debt and, prior to the receipt of
any such written notice, the Trustee, shall be entitled in all
respects conclusively to presume that no such fact exists.
Unless the Trustee shall have received the notice provided for
in the preceding sentence, the Trustee shall have full power
and authority to receive such payment and to apply the same to
the purpose for which it was received, and shall not be
affected by any notice to the contrary which may be received by
it on or after such date. The foregoing shall not apply to any
Affiliate of the Company acting as Paying Agent.
Section 11.07 Defeasance.
Amounts deposited in trust with the Trustee pursuant to and in
accordance with Article 8 and not prohibited to be deposited
under Section 11.03 when deposited shall not be subject to the
subordination provisions of this Article.
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Section 11.08 Subordination Rights Not Impaired by Acts or
Omissions of the Company or Holders of Senior Debt.
No right of any holder of any Senior Debt established in this
Article 11 shall at any time or in any way be prejudiced or
impaired by any act or failure to act on the part of the
Company or by any act or failure to act, in good faith, by any
such holder, or by any failure by the Company to comply with
the terms of this Indenture or by any modification of the terms
of any Senior Debt.
Section 11.09 Right to Hold Senior Debt.
The Trustee is entitled to all of the rights set forth in this
Article 11 in respect of any Senior Debt at any time held by it
to the same extent as any other holder of Senior Debt.
Section 11.10 No Fiduciary Duty of Trustee or Securityholders
to Holders of Senior Debt.
Neither the Trustee nor the Holders owes any fiduciary duty to
the holders of Senior Debt. Neither the Trustee nor the Holders
shall be liable to any holder of Senior Debt in the event that
the Trustee, acting in good faith, shall pay over or distribute
to the Holders, the Company, or any other Person, any property
to which any holders of Senior Debt are entitled by virtue of
this Article or otherwise. Nothing contained in this Section
11. 10 shall affect the obligation of any other such Person to
hold such payment for the benefit of, and to pay such payment
over to, the holders of Senior Debt.
Section 11.11 Distribution to Holders of Senior Debt.
Any Distribution otherwise payable to the holders of the
Securities made to holders of Senior Debt pursuant to this
Article shall be made to such holders of Senior Debt ratably
according to the respective amount of Senior Debt held by
each.
Section 11.12 Trustee's Rights to Compensation, Reimbursement
of Expenses and Indemnification.
The Trustee's rights to compensation, reimbursement of expenses
and indemnification are not subordinated.
Section 11.13 Exception for Certain Distributions.
The rights of holders of Senior Debt under this Article do not
extend (a) to any Distribution to the extent applied to the
Trustee's rights to compensation, reimbursement of expenses or
indemnification or (b) to (i) securities which are subordinated
to the securities distributed to the holders of Senior Debt on
terms no less favorable to the holders of Senior Debt than the
provisions of this Article, or (ii) Distributions under any
plan approved by the court in any Proceeding.
Section 11.14 Certain Definitions.
As used in this Article 11,
"Distribution" means any payment or distribution of assets or
securities of the Company of any kind or character from any
source, whether in cash, securities or other property made by
the Company, liquidating trustee or agent or any other person
whether pursuant to a plan or otherwise.
"Payment Blockage Period" means the period beginning when a
Senior Debt Default Notice is given and ending (a) when the
default identified in the Senior Debt Default Notice is cured,
waived or otherwise ceases to exist or (b) after [179 or fewer]
days, whichever occurs first.
"Proceeding" means a liquidation, dissolution, bankruptcy,
insolvency, receivership or similar proceeding under Bankruptcy
Law, an assignment for the benefit of creditors or any
marshalling of assets or liabilities and does not include any
transaction permitted by and made in compliance with Article 5.
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"Senior Debt Default Notice" means any notice of a default
(other than a Senior Debt Payment Default) that permits the
holders of any Senior Debt to declare such Senior Debt due and
payable.
"Senior Debt Payment Default" means a default in the payment of
any principal of or interest on any Senior Debt.
"Trustee" for purposes of this Article 11 includes a Paying Agent.
ARTICLE 12
Miscellaneous
Section 12.01 Notices.
Any notice by one party to the other shall be in writing and
sent to the other's address stated in Section 12.09. The notice
is duly given if it is delivered in Person or sent by facsimile
transmission or first-class mail.
A party by notice to the other party may designate additional
or different addresses for subsequent notices. Any notice sent
to a Securityholder shall be mailed by first-class letter
mailed to his address shown on the register kept by the
Transfer Agent. Failure to mail a notice to a Securityholder or
any defect in a notice mailed to a Securityholder shall not
affect the sufficiency of the notice mailed to other
Securityholders.
If a notice is mailed in the manner provided above within the
time prescribed, it is duly given, whether or not the addressee
receives it. If the Company mails a notice to Securityholders,
it shall mail a copy to the Trustee and each Agent at the same
time.
A "notice" includes any communication required by this Indenture.
Section 12.02 Communication by Holders with Other Holders.
Securityholders may communicate pursuant to TIA ss.312(b) with
other Securityholders with respect to their rights under this
Indenture or the Securities. The Company, the Trustee, and
Registrar and anyone else shall have the protection of TIA
ss.312(c).
Section 12.03 Certificate and Opinion as to Conditions
Precedent.
Upon any request or application by the Company to the Trustee
to take any action under this Indenture, the Company shall
furnish to the Trustee:
(1) an Officers' Certificate stating that, in the opinion of
the signers, all conditions precedent, if any, provided for
in this Indenture relating to the proposed action have been
complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied
with.
Section 12.04 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall
include:
(1) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he has
made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or
not such covenant or condition has been complied with; and
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(4) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with.
Section 12.05 Rules by Trustee and Agents.
A director, officer, employee or stockholder, as such, of the
Company shall not have any liability for any obligations of the
Company under the Securities or the Indenture or for any claim
based on, in respect of or by reason of such obligations or
their creation.
Section 12.06 Legal Holidays.
A "Legal Holiday" is a Saturday, a Sunday or a day on which
banking institutions are not required to be open. If a payment
date is a Legal Holiday at a place of payment, payment may be
made at that place on the next succeeding day that is not a
Legal Holiday, and no interest shall accrue for the intervening
period.
Section 12.07 No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the
Company shall not have any liability for any obligations of the
Company under the Securities or the Indenture or for any claim
based on, in respect of or by reason of such obligations or
their creation.
Section 12.08 Duplicate Originals.
The parties may sign any number of copies, and may execute such
in counterparts, of this Indenture. One signed copy is enough
to prove this Indenture.
Section 12.09 Variable Provisions.
"Officer" means the President, any Vice-President, the
Treasurer, the Secretary, any Assistant Treasurer or any
Assistant Secretary of the Company.
The Company initially appoints the Trustee as Registrar, Paying
Agent and Conversion Agent.
The first certificate pursuant to Section 4.03 shall be for the
fiscal year ending on December 31, 2000.
The reporting date for Section 7.06 is of each year. The first
reporting date is February 16, 2000.
The Trustee shall always have a combined capital and surplus of
at least $150,000.00 as set forth in its most recent published
annual report of condition. The Trustee will be deemed to be in
compliance with the capital and surplus requirement set forth
in the preceding sentence if its obligations are guaranteed by
a Person which could otherwise act as Trustee hereunder and
which meets such capital and surplus requirement and the
Trustee has at least the minimum capital and surplus required
by TIA ss.310(a)(2).
In determining whether the Trustee has a conflicting interest
as defined in TIA ss.310(b)(1), the following is excluded: Any
Indenture issued to Trustee and held in trust pursuant to this
agreement.
Senior Debt does not include:
(1) the debentures described in the preceding paragraph;
(2) the Company's Corporate Bond Series 1, Floating Rate Notes
1999-2024; and
(3) the Company's subordinated guarantee of the Corporate Bond
Series 1, Floating Rate Notes 1999-2024.
The Securities are not senior in right of payment to the
foregoing debt securities of the Company.
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<PAGE>
The Company's address is:
Intercontinental Capital & Investment Fund, Inc., P.O. Box
15155, Ft. Worth, Texas 76119, Telephone No 817/534-7305.
The Trustee's address is:
Nevada First Holding Inc., 5130 South Pecos Road, Suite 2C
Las Vegas, NV 89120. Telephone No (702)-320-5315
Section 12.10 Governing Law.
The laws of the State of Texas shall govern this Indenture
and the Securities without regard to principles of conflicts of
law.
INTERCONTINENTAL CAPITAL &INVESTMENT FUND, INC.
By: /s/ Boniface Suleman Odiodido
_____________________________
Boniface Suleman Odiodio
President
Dated 4-27-99
Attest: /s/ David M. Swanner Jr
David M. Swanner
_________________________
Secretary
Dated: NEVADA FIRST HOLDING INC.
/s/ Wayne A. Mcminiment
________________________
By: It's Manager
Wayne A. McMiniment
Dated 04-29-1999
Notary Seal
Sworn to before me this 29 day of April, 1999, Notary Public
for the State of Nevada.
My Commission Expire Dec ember 7, 1999
Seal
[NOTARY PUBLIC SEAL - NEVADA /s/ Shelly Stepanek
______________________
Notary
85
<PAGE>
EXHIBIT A
(Face of Security)
Front of instrument
INTERCONTINENTAL CAPITAL & INVESTMENT FUND INC
CORPORATE BOND SERIES 1, FLOATING RATE NOTES 1999 - 2024
BOND NUMBER: 0000
PRINCIPAL AMOUNT: $1,000.00
INTEREST: 0.50% Over US Treasury yield for
same year maturity MINIMUM INTEREST: 6.75%
ISSUE DATE: July 1st, 1999
MATURITY DATE: June 30th, 2024
PRINCIPAL GUARANTEE: 100% Face Value
INTEREST GUARANTEE: 100% Face Value
For value received, we the undersigned Intercontinental Capital &
Investment Fund Inc., hereby irrevocably and unconditional without
protest or notification promise to pay against this promissory notes
to the order of the bearer or the holder thereof at maturity the sum
of $1,000.00, upon presentation and surrender of this note at the
office of Intercontinental Capital & Investment Fund Inc. or the
paying agent. Such payment shall be made by cash or check in US
Dollars, without set-off and free and clear of any deduction or
charges, fees, deduction of withholding of any nature now or
hereafter imposed, levied or assessed by any government, political
subdivision or authority thereof or therein.
The interest shall be due and payable on the 30th of June each
annually until maturity date at the rate of 0.50% over the US
Treasury yield rate for the same year maturity, in any even not less
that 6.75% per year.
The interest is payable upon presentation and surrender of the
interest coupon at the office of Intercontinental Capital &
Investment Fund Inc. of the paying agent. Such payment shall be made
by cash or check in US Dollars, without set-off and free and clear
of any deduction or charges, fees, deduction of withholding of any
nature now or hereafter imposed, levied or assessed by any
government, political subdivision or authority thereof or therein.
This note is guaranteed 100% principal and interest for the face
Value by U.S. Treasury "Strip" Bond.
For and on Behalf of: Intercontinental Capital & Investment Fund Inc.
___________________________________
President
Corporate Seal
__________________________________
Vice President
86
