EXHIBIT 10.39
THIS IRREVOCABLE UNDERTAKING (the "Undertaking") is given on the 7th day of
February, 2003, by:
CONSOLIDATED WATER CO. LTD., a corporation incorporated under the laws of the
Cayman Islands, (hereinafter referred to as the "Borrower")
To:
SCOTIABANK (CAYMAN ISLANDS) LTD., a banking corporation incorporated and
licensed pursuant to the laws of the Cayman Islands (hereinafter referred to as
the "Bank")
WHEREAS:
(a) Pursuant to a loan agreement executed between the Borrower and
the Bank dated the 7th day of February, 2003 (the "Loan
Agreement") the Bank has agreed to make certain loan
facilities available to the Borrower for certain specified
purposes including the financing of the Acquisition;
(b) In consideration of the Bank making available to the Borrower
the financing for the Acquisition the Borrower has agreed to
provide the Bank with various security instruments including
this Undertaking; and
(c) The Borrower has irrevocably agreed, pursuant to this
Undertaking, that upon acquiring Control as defined herein,
the Borrower shall ensure that the board of directors take the
actions, and execute the documents, called for herein.
NOW THEREFORE the Borrower provides the following irrevocable undertaking to the
Bank:
SECTION 1
DEFINITIONS AND RULES OF INTERPERTATIONS
1.1 Unless specifically defined herein, capitalized terms used in this
Undertaking shall have the meanings specified in Annex "A" to the Loan
Agreement.
1.2 In addition, wherever used in this Undertaking the following terms have
the meanings opposite them:
"BOARD OF DIRECTORS" means, the board of directors of the Company;
"COMPANY" means, Waterfields Company Limited;
"CONTROL" means, the purchase of the Shares which shall provide the
Borrower with the ability to elect to the Board of Directors, a
majority of such directors;
"DIRECTORS" means, those members of the Board of Directors, which have
been elected to the Board of Directors by the Borrower exercising its
voting rights accordingly;
"GUARANTEE" means, the Guarantee attached hereto as Exhibit "I";
"OPINION" means, a legal opinion issued by the Company's Bahamian legal
counsel in usual and customary format, reasonably satisfactory to the
Bank, as to, amongst other things, the validity and enforceability of
the Guarantee;
"PLEDGE" means, the charge of Shares attached hereto as Exhibit "II";
and
"SHARES" means, the shareholdings acquired by the Borrower in the
Company.
SECTION 2
2.1 The Borrower hereby irrevocably and unconditionally undertakes that:
(a) The proceeds of the Acquisition or Bridge Loans shall be used
to purchase the Shares;
(b) Once acquired, the Shares shall be pledged, pursuant to the
terms of the Pledge, to the Bank as additional security for
all amounts outstanding under the Loan Agreement;
(c) Upon completion of the acquisition of the Shares, the Borrower
shall have the ability to exert control over the Company
either through Control of the Board of Directors or through
the voting of the Borrower's Shares;
(d) Once the Shares have been acquired, that the Borrower shall
exercise the franchise attached to such Shares in order to
elect the Directors;
(e) Once the Shares have been acquired the Company shall either:
(i) obtain the approval of all of its existing creditors whose
approval is necessary in order to issue the Guarantee in
favour of the Bank; or (ii) shall conclude negotiations with
the Bank, on mutually agreeable terms, in order to obtain from
the Bank the financing necessary to repay the debt of any
existing creditor who does not consent to the issuance of the
Guarantee, so that the Borrower may proceed to issue the
Guarantee;
(f) Once the Shares have been acquired the Company shall issue the
Guarantee and the Company shall cause the issuance of the
Opinion;
2
(g) Once the Shares have been acquired the Company shall remain
under the control of the Borrower; and
(h) Once the Shares have been acquired it shall not permit to
exist any mortgage, charge, lien or any other form of security
interest over the Shares, other than the security interest
contemplated in the Security Documents.
SECTION 4
DEFAULT
4.1 Failure by: (i) the Borrower, (ii) the Board of Directors; or (iii) the
Company to comply in a timely manner with any term, condition,
requirement or obligation contained in this Undertaking shall
constitute an Event of Default pursuant to Section 17.1(q) of the Loan
Agreement and the Bank shall be entitled to exercise any remedy
available to it under the Loan Agreement, the Security Documents or at
law or equity.
4.2 Failure by the Company to issue in favour of the Bank the Guarantee and
the Opinion within the nine (9) month anniversary of the date of
execution of the Loan Agreement shall constitute a breach of this
Undertaking and an Event of Default pursuant to Section 17.1(q) of the
Loan Agreement.
SECTION 5
REPRESENTATIONS AND WARRANTIES OF THE BORROWER
5.1 The Borrower hereby represents and warrants that:
(a) It is a corporation, organized, existing and a good standing
under the laws of the Cayman Islands;
(b) The execution, delivery and performance by the Borrower of
this Undertaking and the obligations contained herein are
within its corporate powers, have been duly authorized by all
necessary corporate action, and do not contravene (i) its
Memorandum or Articles of Association; or (ii) any law or any
contractual restriction binding on or effecting it or its
property, and is enforceable against it in accordance with the
terms of this Undertaking;
(c) No authorization or approval or other action by, or no notice
to or filing with, any Government Authority or other
regulatory body is required for the due execution, delivery
and performance by the Borrower of this Undertaking;
3
(d) No event has occurred which constitutes, or which with the
giving of notice or the lapse of time or relevant
determination, or any combination thereof, would constitute a
contravention of, or default under, any agreement or
instrument by which it or any of its assets is bound or
effected, and which has, or could be regarded as having, a
Material Adverse Effect on its ability to observe or perform
any of its obligation under this Undertaking;
(e) No litigation, arbitration or administrative proceeding or
claim which might itself or together with any other such
proceeding or claim have a Material Adverse Effect on its
ability to observe or perform its obligation under this
Undertaking, is presently in progress or pending, or to the
best of the knowledge, information and belief of it,
threatened against it, or any of its assets;
(f) It has not taken any action, nor has any steps been taken by
or against or with reference to it for the winding-up,
disillusioned, bankruptcy or reorganization of it, or for the
appointment of a receiver, trustee or similar officer of it
with respect to any or all of its assets or revenues;
(g) There are no current liabilities or contingent liabilities,
other than those which are owed to the Bank, which would have
a Material Adverse Effect on the Borrower;
(h) The execution and performance of this Undertaking by the
Borrower will not violate any judgement, order decree or
statute; and
(i) That the Shares acquired pursuant to the Acquisition shall
provide the Borrower with effective Control of the Company.
SECTION 6
TERMINATION OF UNDERTAKING
This Undertaking and the obligations contained herein shall remain in
place until the earlier of: (i) all of the conditions in this
Undertaking have been fulfilled; (ii) all amounts owed to the Bank
pursuant to the Loan Agreement have been repaid in full.
SECTION 7
MISCELLANEOUS
7.1 NO WAIVERS: REMEDIES CUMULATIVE
(a) No failure or delay on the part of the Bank in exercising any
right, power or privilege hereunder or under the Loan
Agreement and other Security Documents and no
4
course of dealing between the Borrower and the Bank shall
operate as a waiver thereof; nor shall any single or partial
exercise of any right, power or privilege hereunder preclude
any other or further exercise thereof or the exercise of any
other right, power or privilege.
(b) The rights and remedies herein expressly provided are
cumulative and not exclusive of any rights or remedies which
the Bank would otherwise have in law.
7.2 COSTS AND EXPENSES
The Borrower hereby covenants with the Bank to keep the Bank fully and
effectively, indemnified against all legal and other costs charges and
expenses from time to time incurred by the Bank in connection with the
enforcement this Undertaking and to pay the same on demand in writing
from the Bank.
7.3 ASSIGNMENT: FUTURE RIGHTS
(a) The Bank shall be entitled to assign its benefit under this
Undertaking or any part thereof to any person.
(b) This Undertaking may not be assigned or transferred, in whole
or in part, by the Borrower without the written consent of the
Bank, which consent the Bank may in its sole discretion refuse
to provide.
7.4 NOTICES
All notices, requests, consents, demands, directions, agreements or other
instruments or communications between the Bank and the Borrower required to be
given hereunder shall be in writing and shall be; (a) sent by private courier
service, next day delivery, or by telefax, or other similar form of rapid
transmission, confirmed by sending (by private courier service, next day
delivery) written confirmation; or (b) personally delivered to the receiving
party or, if not an individual, to an officer or general partner of the
receiving party. All such communications shall be sent or delivered addressed as
follows:
If to the Borrower:
Consolidated Water Co. Ltd.
X.X.Xxx 0000 XX
Xxxxxxxxx Xxxxx
Xxxxx Xxxxxx, Xxxxxx Xxxxxxx.
Attn: Mr. Xxxxxxx Xxxxxx
Telephone No: 000-000-0000
Fax No: 000-000-0000
If to the Bank:
5
Scotiabank (Cayman Islands) Ltd.
Xxxxxx Xxxxxx,
Xxxxxxxx Xxxxxx,
X.X.Xxx 000,
Xxxxx Xxxxxx.
Attn: Commercial Banking Manager
Telephone: 000-000-0000
Fax: 000-000-0000
Any party hereto may, by notice given hereunder, designate any further
or different addresses to which subsequent notices, requests or other
communications shall be sent. All such notices and other communications
shall be effective when received.
7.5 APPLICABLE LAW & JURISDICTION
(a) This Undertaking shall be construed and enforced in accordance
with, and governed by, the laws of the Cayman Islands.
(b) The parties hereto irrevocably submit to the jurisdiction of
the courts of the Cayman Islands.
(c) The submission to the jurisdiction of the courts of the Cayman
Islands shall not (and shall not be construed so as to) limit
the right of the Bank to take proceedings against the Borrower
in any other court of competent jurisdiction, nor shall the
taking of proceedings in any one or more jurisdictions
preclude the taking of proceedings in any other jurisdiction,
whether concurrently or not.
REMAINDER OF THE PAGE LEFT INTENTIONALLY BLANK
6
IN WITNESS WHEREOF this Undertaking has been executed on the date first written
above.
CONSOLIDATED WATER CO. LTD.
By: /s/ Xxxxxxxxx X. XxXxxxxxx
--------------------------------
Authorized Signatory
SCOTIABANK (CAYMAN ISLANDS) LTD.
By: /s/ [ILLEGIBLE]
--------------------------------
Authorized Signatory
7
EXHIBIT "I"
FORM OF GUARANTEE TO BE PROVIDED BY
WATERFIELDS COMPANY LIMITED
8
================================================================================
GUARANTEE
by
WATERFIELDS COMPANY LIMITED
IN FAVOUR OF
SCOTIABANK (CAYMAN ISLANDS) LTD.
Dated the ___ day of______, 2003
================================================================================
TABLE OF CONTENTS
SECTION 1. DEFINITIONS AND INTERPRETATION ................................. 2
1.1 General Definitions .......................................... 2
1.2 Interpretation ............................................... 3
SECTION 2. GUARANTEE ...................................................... 3
2.1 Guarantor Guaranteed Obligations ............................. 3
2.2 Continuing Guarantee ......................................... 3
2.3 Payment of Guaranteed Obligations ............................ 4
2.4 No Set-off ................................................... 4
2.5 Taxes ........................................................ 4
2.6 Application of Payments ...................................... 4
SECTION 3. SAVING PROVISIONS .............................................. 5
3.1 Change in Guaranteed Obligations ............................. 5
3.2 Waiver of Defenses ........................................... 5
3.3 Immediate Recourse ........................................... 6
3.4 Non-Competition .............................................. 6
3.5 Bankruptcy or Liquidation of the Borrower .................... 6
3.6 Appropriation of Moneys ...................................... 6
3.7 Reinstatement ................................................ 7
3.8 Additional Security .......................................... 7
SECTION 4. INDEMNITY ...................................................... 7
4.1 Indemnity .................................................... 7
SECTION 5. REPRESENTATIONS AND WARRANTIES ................................. 7
5.1 Representations and Warranties ............................... 7
5.2 Bank's Reliance .............................................. 8
5.3 Rights and Remedies not Limited .............................. 8
SECTION 6. COVENANTS ...................................................... 8
6.1 Guarantor Covenants .......................................... 8
SECTION 7. MISCELLANEOUS .................................................. 9
7.1 Notices ...................................................... 9
7.2 English Language ............................................. 10
7.3 No Waiver; Remedies Cumulative ............................... 10
7.4 Governing Law and Jurisdiction ............................... 10
7.5 Submission ................................................... 10
7.6 Judgments and Immunity ....................................... 11
7.7 Benefit of Guarantee ......................................... 11
7.8 Expenses ..................................................... 12
7.9 Amendment or Waiver .......................................... 12
7.10 Counterparts ................................................ 12
7.11 Set-off ..................................................... 12
7.12 Currency Indemnity .......................................... 12
THIS GUARANTEE ("GUARANTEE"), dated the ___ day of _____, 2003, is made
as a deed by:
(1) WATERFIELDS COMPANY LIMITED, a company organized and existing under the
laws of Bahamas ("GUARANTOR");
in favour of
(2) SCOTIABANK (CAYMAN ISLANDS) LTD. (the "BANK").
Defined terms used herein shall have the meanings specified in Section 1.
WHEREAS:
(A) Pursuant to a loan agreement dated this day between the
Borrower and the Bank, the Bank has agreed, subject to the terms and conditions
therein contained, to make certain loans to the Borrower (the "Loan Agreement").
(B) It is a condition of the first disbursement of the Loans that
the Guarantor has entered into this Guarantee.
(C) The Guarantor will obtain benefits as a result of the Loans
made to the Borrower under the Loan Agreement and, accordingly, desires to
execute and deliver this Guarantee in order to satisfy the condition described
in recital (B) above.
(D) To induce the Bank to make the Loans and, in particular, the
first disbursement of the Loans, the Guarantor has agreed to guarantee certain
obligations of the Borrower.
(E) The Guarantor has been provided with, and acknowledges receipt
of, copies of the executed Financing Documents.
NOW, THEREFORE, the parties agree as follows:
SECTION 1. DEFINITIONS AND INTERPRETATION.
1.1 General Definitions.
(a) Unless the context otherwise requires, capitalized terms used
in this Guarantee without definition have the meanings
specified in Annex A to the Loan Agreement.
(b) In addition, wherever used in this Guarantee, unless the
context otherwise requires, the following terms have the meaning opposite it:
"FINANCING DOCUMENTS" collectively, (i) the Loan Agreement, (ii) the
Security Documents, and (iii) the Fee Letter.
"GUARANTEED OBLIGATIONS" all liabilities and obligations of the
Borrower to the Bank under or in respect of the Financing Documents, and in any
capacity, irrespective of whether such liabilities and obligations:
(i) are present or future;
(ii) are actual, contingent or
otherwise;
(iii) are at any time ascertained or
unascertained;
(iv) are owed or incurred by or on
account of the Borrower alone, or
severally or jointly with any other
person;
(v) are owed or incurred as principal,
interest, fees, charges, taxes,
duties or other imports, damages
(whether for breach of contract or
tort or incurred on any other
ground), losses, costs or expenses,
or on any other account; or
(vi) comprise any combination of the
above.
provided that the Guaranteed Obligations shall be limited to the lesser
of: (i) the total amount outstanding under the Financing Documents; and (ii) the
maximum amount of indebtedness and liability of the Borrower that the Guarantor
is able to guarantee and to the maximum extent that such security is enforceable
against the Guarantor, without, in either case, causing the Guarantor to
contravene any applicable legislation restricting the giving of guarantees or
which would otherwise render this Guarantee unenforceable.
1.2 Interpretation.
The rules of interpretation set forth in Section 18.13 of the Loan
Agreement shall apply to this Guarantee.
SECTION 2. GUARANTEE.
2.1 Guarantor Guaranteed Obligations.
The Guarantor irrevocably and absolutely, as principal obligor and not
merely as surety, guarantees and promises to pay, upon demand of the Bank, the
Guaranteed Obligations not paid or performed by the Borrower when due in the
same manner in all respects as the Guaranteed Obligations are required to be
paid or performed by the Borrower.
2.2 Continuing Guarantee.
(a) The guarantee and the indemnity of the Guarantor contained in this
Guarantee is a continuing obligation of the Guarantor (and all liabilities to
which it applies or may apply under the terms of this Guarantee shall be
conclusively presumed to have been created in reliance on such guarantee),
notwithstanding any settlement of account or the occurrence of any other thing,
and shall remain in full force and effect until:
(i) the Guaranteed Obligations have been fully paid or
performed strictly in accordance with the provisions
of the Financing Documents, regardless of any
intermediate payment or discharge in whole or in
part; and
(ii) all of the obligations of the Guarantor under this
Guarantee have been fully performed in accordance
with this Guarantee.
(b) The guarantee and the indemnity of the Guarantor contained in
this Guarantee shall be additional, separate and independent obligations of the
Guarantor.
(c) The guarantee and the indemnity of the Guarantor contained in
this Guarantee shall survive the termination of the Financing Documents.
(d) The Guarantor's obligations under this Guarantee can be
discharged only by performance and then only to the extent of such performance.
Those obligations are not subject to any prior notice to, demand upon or action
against the Borrower or any other Person or to any prior notice to the Guarantor
of any default by the Borrower.
2.3 Payment of Guaranteed Obligations.
The Guarantor shall make payment of the Guaranteed Obligations under
Section 2.1 (Guarantor Guaranteed Obligations) as provided in the relevant
Financing Documents.
2.4 No Set-off.
All payments which the Guarantor is required to make under this
Guarantee shall be without any set-off, counterclaim or condition.
2.5 Taxes.
(a) The Guarantor shall pay or cause to be paid all present and future
taxes, duties, fees and other charges of whatsoever nature (excluding income
taxes), if any, now or in the future levied or imposed by any Governmental
Authority or similar body in the jurisdiction in which the Guarantor is located
or out of which a payment is made on or in connection with the payment of any
and all amounts due under this Guarantee.
(b) All payments due under this Guarantee shall be made without
deduction for or on account of any such taxes, duties, fees or other charges.
(c) If the Guarantor is prevented by operation of law or otherwise
from making or causing to be made such payments without deduction, the amounts
due under this Guarantee shall be increased to such amount as may be necessary
so that the Bank receives the full amount it would have received (taking into
account any such taxes, duties, fees or other charges payable on amounts payable
by the Guarantor under this subsection) had such payments been made without such
deduction.
(d) If subsection (c) above applies and the Bank so requires, the
Guarantor shall deliver to the Bank official tax receipts evidencing payment (or
certified copies of them) within thirty (30) days of the date of payment.
2.6 Application of Payments.
The Bank may apply any amounts received by it or recovered under:
(a) any Security Document; and
(b) any other document or agreement which is a security for any of
the Guaranteed Obligations and any other moneys,
in such manner as it determines in its absolute discretion in accordance with
the Financing Documents.
SECTION 3. SAVING PROVISIONS.
3.1 Change in Guaranteed Obligations.
The obligations of the Guarantor under this Guarantee shall extend to
any change in the Guaranteed Obligations:
(a) as a result of any amendment, supplement, renewal or
replacement of any Financing Document or the occurrence of any other thing; and
(b) regardless of whether the Guarantor is aware of, has consented
to or is given notice of any alteration, variation, amendment, supplement,
renewal or replacement of any Financing Document or the occurrence of such other
thing.
3.2 Waiver of Defenses.
Except for payment or performance in full of the Guaranteed
Obligations, the payment in full by the Guarantor of its obligations under this
Guarantee or otherwise as provided in this Guarantee, the Guarantor's
obligations under this Guarantee shall not be discharged, impaired or otherwise
adversely affected by any act, omission, circumstance, matter or thing which,
but for this provision, would reduce, release or prejudice any of its
obligations under this Guarantee or which might otherwise constitute a legal or
equitable discharge or defense of a surety or a guarantor, including (whether or
not known to the Guarantor or the Borrower):
(a) any time, waiver, composition, forbearance or concession given
to the Borrower or any other person;
(b) any assertion of, or failure to assert, or delay in asserting,
any right, power or remedy against the Borrower or any other person, or in
respect of any security for the Loans;
(c) any amplification, amendment (however fundamental), variation
or replacement of the provisions of any Financing Document or of any other
agreement or security between the Bank and the Borrower;
(d) any failure of the Borrower or the Guarantor to comply with
any requirement of any law, regulation or order;
(e) the dissolution, liquidation, reorganization or other
alteration of the legal status or structure of the Borrower or the Guarantor;
(f) any purported or actual assignment, transfer, novation or
disposal of, or granting any participation in, any of the Loans to any other
party;
(g) any Financing Document being in whole or in part illegal,
void, voidable, avoided, invalid, unenforceable or otherwise of limited force
and effect; or
(h) any total or partial failure to realize the value of, or any
release, discharge, exchange or substitution of, any security held by the Bank
in respect of the Guaranteed Obligations or any of them.
3.3 Immediate Recourse.
The Guarantor waives any right it may have of first requiring the Bank
(or any trustee, agent or other person acting on its behalf) to proceed against
or enforce any other rights or security or claim payment from any person before
claiming from the Guarantor under this Guarantee.
3.4 Non-Competition.
(a) If any amounts have become payable or have been paid by the
Guarantor under this Guarantee, the Guarantor shall not, in respect of such
moneys, seek to enforce repayment, obtain the benefit of any security or
exercise any other rights or legal remedies of any kind which may accrue to the
Guarantor against the Borrower, whether by way of subrogation, offset,
counterclaim or otherwise, in respect of the amount so payable or so paid (or in
respect of any other moneys for the time being due to the Guarantor from the
Borrower), if and for so long as any moneys remain outstanding to the Bank under
the Financing Documents. The Guarantor shall hold in trust for, and forthwith
pay or transfer to, the Bank any payment or distribution or benefit of security
received by it contrary to this Section 3.4(a).
(b) Upon the payment and satisfaction in full of all Guaranteed
Obligations and provided that no amounts (actual or contingent) remain
outstanding to the Bank under the Loan Agreement, the Guarantor, if it has made
a payment under this Guarantee, shall be entitled to exercise its rights of
subrogation to its proportion of all relevant rights of the Bank against the
Borrower pursuant to the Financing Documents. The Bank shall promptly execute,
at the expense of the Guarantor, an assignment and such other documents in such
form as the Guarantor may reasonably request to transfer such proportion of such
rights of the Bank against the Borrower to the Guarantor as are required for the
Guarantor to obtain the full benefit of such subrogation. The Guarantor shall
enforce such rights directly against the Borrower in its own name and not in the
name of the Bank.
3.5 Bankruptcy or Liquidation of the Borrower.
If the Borrower becomes bankrupt, enters into a composition or makes
any arrangement with its creditors, or is dissolved, liquidated or wound up, the
Guarantor shall not claim, rank, prove or vote as a creditor of the Borrower or
its estate in competition with the Bank in respect of any amounts owing to the
Guarantor by the Borrower on any account whatsoever, but instead shall give the
Bank the benefit of any such proof and of all amounts to be received in respect
of that proof until all Guaranteed Obligations have been fully paid.
3.6 Appropriation of Moneys.
Until all of the Guaranteed Obligations have been irrevocably paid in
full, the Bank (or any trustee, agent or other person acting on its behalf) may
refrain from enforcing any other moneys, security or rights held or received by
the Bank (or such trustee, agent or other person) in respect of the Guaranteed
Obligations, or apply and enforce the same in such manner and order as it sees
fit.
3.7 Reinstatement.
(a) Where any discharge (whether in respect of the obligations of
the Borrower, the Guarantor or any security for those obligations or otherwise)
is made in whole or in part or any arrangement is made on the faith of any
payment, security or other disposition which is avoided or must be restored on
insolvency, liquidation or otherwise without limitation, the liability of the
Guarantor under this Guarantee shall continue or shall be reinstated (as the
case may be) as if such discharge or arrangement had not occurred.
(b) The Bank (or any trustee, agent or other person acting on its
behalf) may concede or compromise any claim that any payment, security or other
disposition is liable to avoidance or restoration.
3.8 Additional Security.
This Guarantee is in addition to and is not in any way prejudiced by
any collateral or other security now or hereafter held by the Bank, nor shall
such collateral or other security held by the Bank or the liability of any
person for all or any part of the Guaranteed Obligations be in any manner
prejudiced or affected by this Guarantee.
SECTION 4. INDEMNITY.
4.1 Indemnity.
The Guarantor agrees as a primary obligor and not merely as a surety,
to indemnify and hold harmless the Bank from and against any loss, cost or
damage incurred by the Bank as a result of any obligation of the Guarantor
hereunder as guarantor being or becoming void, voidable, unenforceable or
otherwise ineffective against the Guarantor for any reason whatsoever (whether
or not known to the Bank or any other Person), the amount of such loss being
limited to the amount that the Bank would have been entitled to recover from the
Guarantor as guarantor pursuant to this Guarantee had such obligations not
become void, voidable, unenforceable or otherwise ineffective against the
Guarantor.
SECTION 5. REPRESENTATIONS AND WARRANTIES.
5.1 Representations and Warranties.
The Guarantor represents and warrants to the Bank that as of the date
of this Guarantee and on each Drawdown Date:
(a) it is a company duly incorporated under the laws of the
jurisdiction of its incorporation and has the corporate power to enter into and
deliver and to perform its obligations under this Guarantee;
(b) the execution and delivery by it of this Guarantee and the
performance by it of its obligations hereunder have been duly authorized;
(c) it has duly executed this Guarantee and this Guarantee
constitutes its valid and legally binding obligations;
(d) neither the execution and delivery by it of this Guarantee nor
the performance by it of its obligations under this Guarantee:
(i) conflicts with or will conflict with or result in any
breach of any of the terms, conditions or provisions
of, or violate or constitute a default or require any
consent under, any indenture, mortgage, agreement or
other instrument or arrangement to which it is a
party or which binds or purports to be binding upon
it; or
(ii) violates or will violate any judgment, decree or
order or any statute, rule or regulation or any of
the terms or provisions of its Charter;
(e) all authorizations required for the execution and delivery of
this Guarantee by it and the performance by it of its obligations hereunder have
been duly obtained or granted and are in full force and effect;
(f) it has not requested or taken any security from the Borrower
for any obligation (whether present or future, actual or contingent) of the
Borrower to it; and
(g) the representations and warranties set out in this Section 5.1
(Representations and Warranties) will survive the execution of each Financing
Document and each Disbursement under the Financing Documents.
5.2 Bank's Reliance.
The Guarantor acknowledges that it makes the representations in Section
5.1 (Representations and Warranties) with the intention of inducing the Bank to
enter into this Guarantee and the Financing Documents and that the Bank enters
into this Guarantee and the Financing Documents on the basis of, and in full
reliance on, each of such representations.
5.3 Rights and Remedies not Limited.
The Bank's rights and remedies in relation to any misrepresentation or
breach of warranty on the part of the Guarantor are not prejudiced:
(a) by any investigation by or on behalf of the Bank into the
affairs of the Guarantor;
(b) by the execution or the performance of this Guarantee; or
(c) by any other act or thing which may be done by or on behalf of
the Bank in connection with this Guarantee and which might, apart from this
Section, prejudice such rights or remedies.
SECTION 6. COVENANTS.
6.1 Guarantor Covenants.
The Guarantor shall:
(a) when requested by the Bank, do or cause to be done anything
which aids the exercise of any power, right or remedy of the Bank under this
Guarantee including, but not limited to, the execution of any document or
agreement;
(b) obtain, maintain and renew when necessary all authorizations
required under any law or document or agreement;
(i) to enable it to perform its obligations under this
Guarantee; or
(ii) for the validity or enforceability of the guarantee;
(c) not take any action which may impair the ability of the
Borrower to observe and perform all of its covenants, agreements and obligations
under or pursuant to the Financing Documents;
(d) take such action as may be necessary or as the Bank may
reasonably request in order to:
(i) comply with its obligations under this Guarantee; and
(ii) cause the Borrower to the extent possible to take
such corporate action as may be necessary to comply
with its respective obligations under the Financing
Documents;
(e) the Guarantor shall not take any action which would cause any
of the representations made in Section 5.1 (Representations and Warranties) to
be untrue at any time during the continuation of this Guarantee.
SECTION 7. MISCELLANEOUS.
7.1 Notices.
(a) All notices, requests, approvals, consents and other
communications provided for hereunder shall be in writing (including, unless the
context expressly otherwise provides, by facsimile transmission, provided that
any matter transmitted by the Guarantor by facsimile (i) shall be promptly
confirmed by a telephone call to the recipient at the number specified on the
applicable signature page hereof, and (ii) shall be followed promptly by a hard
copy original thereof by express courier) and faxed or delivered, to the address
or facsimile number specified for notices on the applicable signature page
hereof or to such other address as shall be designated by such party in a
written notice to the other parties hereto.
(b) All such notices, requests, approvals, consents and
communications (i) sent by express courier will be effective upon delivery to or
refusal to accept delivery by the addressee, and (ii) transmitted by facsimile
will be effective when sent and facsimile confirmation received; except that all
notices and other communications to any Agent shall not be effective until
actually received.
(c) The Guarantor acknowledges and agrees that any agreement of
the Bank to receive certain notices by telephone and facsimile is solely for the
convenience and at the request of the Guarantor. The Bank shall be entitled to
rely on the authority of any Person purporting to be a Person authorized by the
Guarantor to give such notice and the Bank shall
not have any liability to the Guarantor or other Person on account of any action
taken or not taken by the Bank in reliance upon such telephonic or facsimile
notice.
(d) All notices, requests and other communications hereunder and
under the other Financing Documents shall be in the English language.
7.2 English Language.
This Guarantee and all other Financing Documents shall be in the
English language. Except as otherwise agreed by the parties hereto, all
documents, certificates, reports or notices to be delivered or communications to
be given or made by any party hereto pursuant to the terms of this Guarantee or
any other Financing Document shall be in the English language.
7.3 No Waiver; Remedies Cumulative.
No failure or delay on the part of the Bank or the holder of any Note
in exercising any right, power or privilege hereunder or under any other
Financing Document and no course of dealing between the Guarantor and the Bank
or the holder of any Note shall operate as a waiver thereof, nor shall any
single or partial exercise of any right, power or privilege hereunder or under
any other Financing Document preclude any other or further exercise thereof or
the exercise of any other right, power or privilege hereunder or thereunder. No
notice to or demand on the Guarantor in any case shall entitle the Guarantor to
any other or further notice or demand in similar or other circumstances or
constitute a waiver of the rights of the Bank or the holder of any Note to take
any other or further action in any circumstances without notice or demand. All
remedies, either under this Guarantee or any other Financing Document or
pursuant to any applicable Law or otherwise afforded to the Bank shall be
cumulative and not alternative.
7.4 Governing Law and Jurisdiction.
THIS GUARANTEE IS GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAW OF
BAHAMAS.
7.5 Submission.
(a) For the exclusive benefit of the Bank, the Guarantor
irrevocably agrees that the courts of the Bahamas are to have jurisdiction to
settle any claims or disputes arising under, out of or in connection with this
Guarantee (including without limitation any claim or dispute relating to the
validity, interpretation, performance, termination or enforcement of this
Guarantee) and that accordingly any suit, action or proceedings in that respect
(together in this Section 7 referred to as "PROCEEDINGS") may be brought in such
courts.
(b) The Guarantor irrevocably waives and agrees not to raise any
objection which it may have now or hereafter to the laying of the venue of any
Proceedings in the courts of Bahamas and any claim that any such Proceedings
have been brought in an inconvenient or inappropriate forum.
(c) The Guarantor irrevocably agrees not to take Proceedings in
any court of competent jurisdiction other than the courts of the Bahamas, save
with respect to any counterclaim asserted by the Guarantor in the course of
proceedings previously commenced by the Bank. Nothing contained in this Section
7 shall limit the right of the Bank to take
Proceedings against the Guarantor in any other court of competent jurisdiction,
nor shall the taking of Proceedings in one or more jurisdictions preclude the
taking of Proceedings in any other jurisdiction, whether concurrently or not.
7.6 Judgments and Immunity.
(a) The Guarantor recognizes and acknowledges that this Guarantee
constitutes a commercial transaction and accordingly it acknowledges and agrees
that it is not entitled to plead, and hereby waives to the fullest extent
permitted by law any right to claim, sovereign immunity for any purpose
whatsoever, including, but not limited to, any right to plead sovereign immunity
in respect of any Proceedings pursuant to this Guarantee.
(b) The Guarantor consents generally, in respect of any
Proceedings pursuant to this Guarantee for the purpose of enforcing any order,
judgment or award, to the giving of any relief or the issuing of any process in
connection with such order, judgment or award including, without limitation, the
making, enforcement or execution against any property of any order, judgment or
award and to the extent that the Guarantor may be entitled in any jurisdiction
to claim for itself or its property immunity in respect of its obligations under
this Guarantee from any suit, execution, attachment (whether in aid of
execution, before judgment or otherwise) or legal process or to the extent that
in any jurisdiction there may be attributed to itself or its property such
immunity, the Guarantor agrees not to claim and hereby irrevocably waives such
immunity to the fullest extent permitted by the laws of such jurisdiction.
(c) The Guarantor unconditionally and irrevocably agrees, with
respect to any final order, judgment or award in any Proceedings made pursuant
to this Guarantee and not subject to appeal (a"JUDGMENT"), that:
(i) the Judgment shall be conclusive and binding upon it;
(ii) it shall be bound by and recognize the Judgment in
any jurisdiction;
(iii) to the extent permitted by law, it shall not claim,
invoke on its behalf or for its benefit any right it
may have under the laws of Bahamas or any other state
or jurisdiction, to prevent, delay, hinder, nullify
or in any other way obstruct the enforcement or
execution of the Judgment; and
(iv) to the extent permitted by law, it shall not, and
shall irrevocably waive any right to, challenge the
Judgment on any ground or the enforcement or
execution of the Judgment in any jurisdiction (other
than by way of appeal in the original jurisdiction).
7.7 Benefit of Guarantee.
This Guarantee shall be binding upon and inure to the benefit of and be
enforceable by the respective successors and permitted assigns of the parties
hereto. The Guarantor may not assign or otherwise transfer any of its rights
under this Guarantee or any of the other Financing Documents. The benefit of
this Guarantee may be freely and unconditionally assigned, transferred or
otherwise disposed of, in whole or in part, by the Bank to any other person,
corporate or otherwise, to whom the Bank has assigned all or part of its rights
under the Loan Agreement.
7.8 Expenses.
The Guarantor shall be liable to pay to the Bank the costs and expenses
incurred by the Bank in relation to the enforcement or protection or attempted
enforcement or protection of its rights under this Guarantee, including legal
and other professional consultants' fees on a full indemnity basis.
7.9 Amendment or Waiver.
No provision of this Guarantee may be amended, supplemented, modified
or waived, except by a written instrument signed by the Bank and the Guarantor.
7.10 Counterparts.
This Guarantee may be executed in any number of counterparts and by the
different parties hereto on separate counterparts, each of which when so
executed and delivered shall be an original, but all of which shall together
constitute one and the same instrument.
7.11 Set-off.
The Guarantor authorizes the Bank or any of its subsidiaries and
affiliates (which shall not be obliged to exercise this right) to apply any
credit balance to which the Guarantor is entitled on any account of the
Guarantor with the Bank or any of its subsidiaries and affiliates in
satisfaction of any sum which is due and payable from the Guarantor to the Bank
under this Guarantee and remains unpaid; for this purpose, the Bank is
authorized to purchase with the monies standing to the credit of any such
account such other currencies as may be necessary to effect such application.
7.12 Currency Indemnity.
If any sum due under this Guarantee or any order or judgment given or
made in relation to this Guarantee has to be converted from the currency (the
"FIRST CURRENCY") in which the same is payable under this Guarantee or under
such order or judgment into another currency (the "SECOND CURRENCY") for the
purpose of (a) making or filing a claim or proof against the Guarantor, (b)
obtaining an order or judgment in any court or other tribunal or (c) enforcing
any order or judgment given or made in relation to this Guarantee, the Guarantor
shall indemnify and hold harmless the Bank from and against any loss it suffers
or incurs as a result of any discrepancy between (i) the rate of exchange used
for such purpose to convert the sum in question from the first currency into the
second currency, and (ii) the rate or rates of exchange at which the Bank may in
the ordinary course of business purchase the first currency with the second
currency upon receipt of a sum paid to it in satisfaction, in whole or in part,
of any such order, judgment, claim or proof.
* *
IN WITNESS WHEREOF, this Guarantee has been executed as a deed by the parties
hereto and is delivered on the date stated at the beginning of this Guarantee.
WATERFIELDS COMPANY LIMITED
By: _________________________________
Name:
Title:
Notice Address:
Address:
X.X.Xxx 0000 XX
Xxxxxxxxx Xxxxx
Xxxxx Xxxxxx, Xxxxxx Xxxxxxx.
Attention:
Telephone No.: 000 000-0000
Telecopier No. 000 000-0000
SCOTIABANK (CAYMAN) LTD.
By: _________________________________
Name: Xx. Xxxxx Xxxx
Title: Commercial Banking Manager
Notice Address:
Address:
Scotiabank (Cayman Islands) Ltd.
Scotia Centre
Xxxxxxxx Xxxxxx
X.X. Xxx 000
Xxxxx Xxxxxx
Attention: Commercial Banking Manager
Telephone No.: 000 000-0000
Telecopier No. 000 000-0000
EXHIBIT "II"
FORM OF PLEDGE OF SHARES TO BE PROVIDED BY
WATERFIELDS COMPANY LIMITED
9
THE___DAY OF_____, 2003
EQUITABLE CHARGE OF SHARES
(Collateral to a Substituted Debenture bearing even date herewith and
entered into between the Borrower and the Secured Party)
BETWEEN
CONSOLIDATED WATER CO. LTD.
as Borrower
AND
SCOTIABANK (CAYMAN ISLANDS) LTD.
as Secured Party
with respect to the shares in
WATERFIELDS COMPANY LIMITED
(i)
THIS COLLATERAL CHARGE ("CHARGE") is made on the ___ day of_____, 2003 between
the following parties:
(1) CONSOLIDATED WATER CO. LTD., a company incorporated in the Cayman
Islands, with its registered office located at P.O. Box 1114 GT,
Trafalgar Place, Xxxxxx Town, Grand Cayman, Cayman Islands, (the
"BORROWER"); and
(2) SCOTIABANK (CAYMAN ISLANDS) LTD. a banking institution organised and
existing under the laws of the Cayman Islands, with its principal place
of business located at Scotiabank Centre, Cardinal Avenue, Georgetown,
Grand Cayman (the "SECURED PARTY").
RECITALS
A. The Borrower currently holds [insert percentage amount of shareholding
(%)] of the Capital Stock of Waterfields Company Limited (the
"COMPANY").
B. The Secured Party has agreed to provide certain loans to the Borrower.
C. Such loans will be made subject to the terms and conditions of a Loan
Agreement, dated the date hereof, among the Borrower and the Secured
Party (the "LOAN AGREEMENT").
D. It is a condition to the first disbursement under the Loan Agreement
that the Borrower shall have entered into the Charge.
E. The Board of Directors of the Borrower is satisfied that the Borrower
is entering into this Charge for the purposes of its business and that
its doing so benefits the Borrower.
F. The Borrower and the Secured Party intend this Charge to take effect as
a deed.
G. This Collateral Charge is intended to be collateral to a Substituted
Debenture bearing even date herewith entered into between the Borrower
and the Secured Party and shall be stamped as such.
1. INTERPRETATION
1.1 DEFINITIONS
(a) Capitalized terms used in this Charge without definition have the
meanings specified in Annex A to the Loan Agreement.
(b) In addition the following terms in this Charge have the meanings given
to them in this Clause.
"CHARGED SHARES" means any shares from time to time forming part of the Secured
Property.
"FINANCING DOCUMENTS" means collectively, (i) the Loan Agreement, (ii) the
Security Documents, and (iii) the Fee Letter.
"INITIALLY CHARGED SHARES" means all the shares in the Company specified in
recital "A" to this Charge of which the Company is the beneficial or registered
owner on the date of this Charge.
"OBLIGATIONS" shall mean, collectively, all loans, advances, debts, liabilities,
and obligations, howsoever arising, owed by the Borrower under a Financing
Document or otherwise to the Secured Party.
"RECEIVER" means an administrative receiver, a receiver and manager or any other
receiver (whether appointed pursuant to this Charge, pursuant to any statute, by
a court or otherwise) of the Secured Property or any part of it.
"SECURED OBLIGATIONS" means all present and future Obligations.
"SECURED PROPERTY" means the Initially Charged Shares and any other shares in
the Company of which the Borrower is or becomes the beneficial or registered
owner together with all dividends, stocks, shares, warrants, securities, rights,
monies or other property accruing on or derived from such shares.
"SECURITY" means the security created by this Charge.
"SECURITY PERIOD" means the period beginning on the date of this Charge and
ending on the date upon which:
(a) the Secured Party is under no obligation (whether actual or contingent)
to make advances or provide other financial accommodation to the
Borrower under any of the Financing Documents; and
(b) all Secured Obligations have been unconditionally and irrevocably paid
and discharged in full.
1.2 INTERPRETATION
The principles of interpretation set forth in Section 18.13 to the Loan
Agreement shall apply to this Charge.
1.3 CONTINUING EVENTS OF DEFAULT
An event which constitutes an Event of Default shall be regarded as continuing
if (a) the circumstances constituting such event continue and (b) the Secured
Party has not waived such of its rights under the Financing Documents as arise
as a result of the occurrence of that event.
1.4 CERTIFICATES
A certificate of the Secured Party as to the amount of any Secured Obligation
owed to it shall be prima facie evidence of the existence and amount of such
Secured Obligation.
-2-
1.5 STATUTES
Any reference in this Charge to a statute or statutory provision shall, unless
the contrary is indicated, be construed as a reference to such statute or
statutory provision as the same shall have been or may be amended or re-enacted.
1.6 NOMINEES
If the Secured Party causes or requires the Charged Shares to be registered in
the name of a nominee for the Secured Party, any reference in this Charge to the
Secured Party shall, if the context so permits or requires, be construed as a
reference to the Secured Party and such nominee.
1.7 CLAUSE AND SCHEDULE HEADINGS
Clause and Schedule headings are for ease of reference only and shall not affect
the construction of this Charge.
2. EQUITABLE CHARGE
2.1 CHARGE
The Borrower hereby charges with full title guarantee the Secured Property to
the Secured Party to hold the same on trust as security for the payment and
discharge of the Secured Obligations.
2.2 DEPOSIT OF SHARE CERTIFICATES
Immediately upon execution of this Charge and as a condition to the initial
disbursement under the Loan Agreement, the Borrower shall deposit with the
Secured Party all share certificates and other documents of title relating to
the Initially Charged Shares together with stock transfer forms in respect of
the Initially Charged Shares duly executed in blank by or on behalf of the
Borrower.
2.3 FURTHER SHARES
(a) Upon its becoming the beneficial or registered owner of any Charged
Shares (other than the Initially Charged Shares) the Borrower shall
ensure that such Charged Shares (unless already so registered) are
registered in the name of the Borrower and shall promptly notify the
Secured Party of such circumstances and deposit with the Secured Party
any share certificates and other documents of title representing such
Charged Shares together with blank stock transfer forms in respect of
such Charged Shares duly executed by or on behalf of the Borrower.
(b) [NOTE TO DRAFT FOR ATTENTION OF BORROWER'S COUNSEL - ARE THERE ANY
SHARES OTHER THAN THE ORDINARY/COMMON SHARES]
The Borrower shall pay when due all calls or other requests for payments due in
respect of any of the Secured Property, but if the Borrower fails to make any
such payment the Secured Party may
-3-
(but shall not be obliged to) make such payment on behalf of the Borrower and if
the Secured Party does so the Borrower shall promptly on demand of the Secured
Party pay to the Secured Party an amount equal to such payment.
3. DIVIDENDS, VOTING AND INFORMATION
3.1 SECURITY NOT ENFORCEABLE
Unless and until the Security has become enforceable pursuant to Clause 8.1
(Security Enforceable), the Borrower shall continue to be entitled to:
(a) receive and retain all dividends, interest and other monies arising
from the Secured Property; and
(b) exercise all voting rights in relation to the Charged Shares;
provided that the Borrower shall not exercise such voting rights, or otherwise
permit or agree to (i) any variation of the rights attaching to or conferred by
the Secured Property or any part of it, (ii) any increase in the issued share
capital of the Company in any manner which, in the opinion of the Secured Party,
would, or would be reasonably likely to, impair the value of, or prejudice the
ability of the Secured Party to realise, the Security or (iii) in violation of
any provision of the Financing Documents.
3.2 SECURITY ENFORCEABLE
At any time after the Security has become enforceable pursuant to Clause 8.1,
the Secured Party shall be entitled to cause the Charged Shares to be registered
in its name and may at its discretion (in the name of the Borrower or otherwise
and without any further consent or authority from the Borrower);
(a) exercise or refrain from exercising any voting rights in respect of the
Charged Shares and revoke, or cause to be revoked, any proxies given
pursuant to Clause 3.1 (Security not Enforceable);
(b) apply all dividends, interest and other monies arising from the Secured
Property as if they were proceeds of sale under this Charge;
(c) exercise or refrain from exercising the rights of a legal owner of the
Secured Property, including the right, in relation to any company whose
shares or other securities are included in the Secured Property, to
concur or participate in:
(i) the reconstruction, amalgamation, sale or other disposal of
such company or any of its assets or undertaking (including
the exchange, conversion or reissue of any shares or
securities as a consequence thereof),
(ii) the realisation, modification or variation of any rights or
liabilities attaching to any such shares or securities, and
-4-
(iii) the exercise, renunciation or assignment of any right to
subscribe for any such shares or securities,
in each case in such manner and on such terms as the Secured
Party may think fit, and all rights resulting from any such
action shall form part of the Secured Property.
3.3 INFORMATION
If the Borrower receives a balance sheet, profit and loss account or any notice,
report, statement or circular sent or delivered by the issuer of any Charged
Share to its members, it shall promptly deliver a copy to the Secured Party.
4. CONTINUING SECURITY
4.1 CONTINUING AND INDEPENDENT SECURITY
This Charge shall constitute and be continuing security which shall not be
released or discharged by any intermediate payment or settlement of all or any
of the Secured Obligations, shall continue in full force and effect until the
end of the Security Period and is in addition to and independent of, and shall
not prejudice or merge with, any other security (or any right of set-off) which
the Secured Party may hold at any time for the Secured Obligations or any of
them.
4.2 AVOIDANCE OF PAYMENTS
Where any release, discharge or other arrangement in respect of any Secured
Obligation or any security any Secured Party may hold for such Secured
Obligation is given or made in reliance on any payment or other disposition
which is avoided or must be repaid in an insolvency, liquidation or otherwise,
and whether or not such Secured Party has conceded or compromised any claim that
any such payment or other disposition will or should be avoided or repaid, this
Charge and the Security shall continue as if such release, discharge or other
arrangement had not been given or made.
4.3 IMMEDIATE RECOURSE
The Secured Party shall not be obliged before exercising any of the rights
conferred on it by this Charge or by law to seek to recover amounts due from the
Borrower or to exercise or enforce any other rights or security it may have or
hold in respect of the Secured Obligations.
4.4 WAIVER OF DEFENCES
Neither the obligations of the Borrower under this Charge nor the Security
Documents and the rights, powers and remedies conferred on the Secured Party by
this Charge or by law shall be discharged, impaired or otherwise affected by:
(a) the winding-up, dissolution, administration or re-organisation of the
Borrower or any other person or any change in the status, function,
control or ownership of the Borrower or any such person;
-5-
(b) any of the Secured Obligations or any other security held by the
Secured Party in respect thereof being or becoming illegal, invalid,
unenforceable or ineffective in any respect;
(c) any time or other indulgence being granted or agreed to with the
Borrower or any other person in respect of the Secured Obligations or
any of them or in respect of any other security held by the Secured
Party in respect thereof;
(d) any amendment to, or any variation, waiver or release of, the Secured
Obligations or any of them or any other security held by the Secured
Party in respect thereof;
(e) any total or partial failure to take or perfect any security proposed
to be taken in respect of the Secured Obligations or any of them;
(f) any total or partial failure to realise the value of, or any release,
discharge, exchange or substitution of, any other security held by the
Secured Party in respect of the Secured Obligations or any of them; or
(g) any other act, event or omission which might operate to discharge,
impair or otherwise affect the obligations of the Borrower hereunder,
the Security or any of the rights, powers and remedies conferred on the
Secured Party by this Charge or by law.
4.5 NO COMPETITION
Any right which the Borrower may have (a) by way of contribution or indemnity in
relation to the Secured Obligations or (b) otherwise to claim or prove as a
creditor of the Company or any other person or its estate in competition whether
a right of subrogation or otherwise with the Secured Party, shall be exercised
by the Borrower only if and to the extent that the Secured Party so requires and
in such manner and upon such terms as the Secured Party may specify and the
Borrower shall hold any moneys, rights or security held or received by it as a
result of the exercise of any such rights on trust for the Secured Party for
application in accordance with the terms of this Charge as if such moneys,
rights or security were held or received by the Secured Party under this Charge.
4.6 APPROPRIATION
The Secured Party shall not be obliged to apply any sums held or received by it
in respect of the Secured Obligations in or towards payment of the Secured
Obligations and any such sum shall be held by or paid to the Secured Party for
application pursuant to the terms of this Charge.
4.7 SUBROGATION
The Borrower shall have no right of subrogation in respect of the performance of
any of its obligations under this Agreement and the Charge until all of the
Secured Obligations have been paid in full.
-6-
5. REPRESENTATIONS AND WARRANTIES
The Borrower makes the representations and warranties set out in Clauses 5.1
(Status and Due Authorisation) to 5.12 (No Security from the Company) and
acknowledges that the Secured Party has entered into this Charge in reliance on
those representations and warranties.
5.1 STATUS AND DUE AUTHORISATION
It is a company duly incorporated with limited liability under the laws of the
Cayman Islands with power to enter into this Charge and to exercise its rights
and perform its obligations under this Charge and all corporate and other action
required to authorise its execution of this Charge and its performance of its
obligations hereunder has been duly taken.
5.2 BINDING OBLIGATIONS
The obligations expressed to be assumed by it in this Charge are legal and valid
obligations binding on it in accordance with the terms of this Charge which
constitutes a first priority fixed charge over the Charged Shares subject to any
general principles of law limiting its obligations which are referred to in any
legal opinion delivered pursuant to the Loan Agreement.
5.3 ALL ACTIONS TAKEN
All acts, conditions and things required to be done, fulfilled and performed in
order (a) to enable it lawfully to enter into, exercise its rights under the
perform and comply with the obligations expressed to be assumed by it in this
Charge, (b) to ensure that the obligations expressed to be assumed by it in this
Charge are legal, valid and binding and (c) to make this Charge admissible in
evidence in its jurisdiction of incorporation have been done, fulfilled and
performed.
5.4 NO DEDUCTIONS OR WITHHOLDINGS
It will not be required to make any deduction or withholding from any payment it
may make under this Charge.
5.5 NO FILING OR STAMP TAXES
Under the laws of its jurisdiction of incorporation, it is not necessary that
this Charge be filed, recorded or enrolled with any court or other authority in
the Cayman Islands or that any ad valorem stamp, registration or similar tax be
paid on or in relation to this Charge.
5.6 NO WINDING-UP
It has not taken any corporate action nor have any other steps been taken or
legal proceedings been started or (to the best of its knowledge and belief)
threatened against it for its winding-up, dissolution, administration or
re-organisation or for the appointment of a receiver, administrator,
administrative receiver, trustee or similar officer of it or of any or all of
its assets or revenues.
-7-
5.7 NO ADVERSE INTERESTS
Subject only to the Security, no person other than the Borrower has any legal or
beneficial interest (or any right to claim any such interest) in the Secured
Property and the Borrower has not received notice of any such claim.
5.8 NO DISPOSALS
Save as contemplated in this Charge, it has not transferred, mortgaged, charged
or otherwise disposed of (or agreed to transfer, mortgage, charge or otherwise
dispose of), whether by way of security or otherwise, the benefit of all or any
of its right, title and interest in and to the Secured Property or any part of
it.
5.9 NO CONFLICTS
Its execution of this Charge and its exercise of its rights and performance of
its obligations hereunder do not and will not (a) conflict with the provisions
of (i) any agreement, mortgage, bond or other instrument or treaty to which it
is a party or which is binding upon it or any of its assets, (ii) its
constitutive documents or any rules and regulations made thereunder or (iii) any
applicable law, regulation or official or judicial order or (b) cause any of the
foregoing representations to be untrue.
5.10 THE CHARGED SHARES
Each Charged Share is fully paid or credited as fully paid, no calls have been
made in respect thereof and remain unpaid and no calls can be made in respect of
such Charged Share in the future and the terms of each Charged Share and of the
Memorandum and Articles of Association of the issuer of such Charged Share do
not restrict or otherwise limit the Borrower's right to transfer or charge such
Charged Share.
5.11 CHOICE OF LAW
In any proceedings taken in its jurisdiction of incorporation in relation to
this Charge, the choice of the laws of the Bahamas as the governing law of this
Charge and any judgment obtained in the Cayman Islands will be recognised and
enforced.
5.12 NO SECURITY FROM THE COMPANY
It has not requested or taken any security from the Company for any obligations
or liabilities of the Company to it.
5.13 REPETITION
The representations and warranties set out in Clauses 5.1 (Status and Due
Authorisation) to 5.12 (No Security from the Company):
(a) shall survive the execution of each Financing Document and each
drawdown under the Loan Agreement; and
-8-
(b) are made on the date hereof and are deemed to be repeated on each Draw
down Date during the Security Period with reference to the facts and
circumstances then existing.
6. UNDERTAKINGS
6.1 AUTHORISATIONS
The Borrower shall obtain, comply with the terms of and do all that is necessary
to maintain in full force and effect all authorisations, approvals, licences and
consents required in or by the laws and regulations of its jurisdiction of
incorporation to enable it lawfully to enter into and perform its obligations
under this Charge and to ensure the legality, validity, enforceability or
admissibility in evidence in its jurisdiction of incorporation of this Charge.
6.2 NO ACTION
The Borrower shall not take any action which would cause any of the
representations made in Clause 5 (Representations and Warranties) to be untrue
at any time during the Security Period.
6.3 NOTIFICATION OF MISREPRESENTATION
The Borrower shall notify the Secured Party of the occurrence of any event which
results in or may reasonably be expected to result in any of the representations
made in Clause 5 (Representations and Warranties) being untrue when made or when
deemed to be repeated.
6.4 NO VARIATION OR RELEASE
The Borrower shall not, without the prior written consent of the Secured Party,
purport to vary or revoke any notice or instruction relating to this Charge
which it has given or may later give to any person.
6.5 NO ACTION TO JEOPARDISE SECURITY CONSTITUTED HEREBY
The Borrower shall not do or fail to do or cause or permit another person to do
or omit to do anything which is liable to jeopardise the effectiveness or
priority, in relation to the Security.
7. FURTHER ASSURANCE
The Borrower shall from time to time and at its own expense give all such
assurances and do all such things as the Secured Party may require in order to
enable the Secured Party to perfect or protect the security created or intended
to be created by this Charge or to exercise any of the rights conferred on it by
this Charge or by law and to that intent the Borrower shall execute all such
instruments, deeds and agreements and give all such notices and directions as
the Secured Party may require.
-9-
8. ENFORCEMENT OF SECURITY
8.1 SECURITY ENFORCEABLE
The Security shall become immediately enforceable if an Event of Default has
occurred and is continuing as defined above in Clause 1.3.
8.2 ENFORCEMENT
At any time after the Security has become enforceable, the Secured Party may in
its absolute discretion enforce all or any part of the Security and exercise any
of the rights conferred on it by this Charge or by law at such times and in such
manner as it thinks fit.
8.3 POWER OF SALE
At any time after the Security has become enforceable pursuant to Clause 8.1
(Security Enforceable), the Secured Party may (without notice to the Borrower)
sell or otherwise dispose of the Secured Property or any part of it and shall be
entitled to apply the proceeds of such sale or other disposal in paying the
costs of such sale or disposal and thereafter in or towards the discharge of the
Secured Obligations or otherwise as provided for in this Charge.
8.4 STATUTORY POWERS
For the purposes of all powers implied by statute the Secured Obligations shall
be deemed to have become due and payable on the date of this Charge.
8.5 REGISTRATION OF SHARES
The Secured Party shall be entitled at any time after the Security has become
enforceable pursuant to Clause 8.1 (Security Enforceable) to complete any stock
transfer forms then held by the Secured Party pursuant to this Charge in the
name of the Secured Party and thereupon the Borrower shall do whatever the
Secured Party requires in order to procure:
(a) The prompt registration of such transfer or transfers and the prompt
issue of a new certificate or certificates for the relevant Charged
Shares in the name of the Secured Party who shall hold such Charged
Shares as Security for the Obligations in furtherance of the power of
sale provided for in Clause 8.3 above; and
(b) Compliance by the Company with all requirements of the Land Holding
Companies Share Transfer Tax Law (2002 Revision), as the same may be
amended from time to time, or any legislation in substitution or in
addition thereto and the Borrower shall provide all assistance as may
be needed or required by the Company to enable it to meet such
compliance whether financial or otherwise.
-10-
9. RECEIVERS
9.1 APPOINTMENT
At any time after the Security has become enforceable (whether or not the
Secured Party shall have taken possession of the Secured Property), or following
the dissolution of the Borrower, and without any or further notice, the Secured
Party may, by Deed or writing signed by any officer or manager of the Secured
Party or any person authorised for this purpose by the Secured Party, appoint
any person to be Receiver, and may similarly remove any Receiver whether or not
it appoints any person in his place. If the Secured Party appoints more than one
person as Receiver, the Secured Party may give the relevant persons power to act
either jointly or severally.
9.2 SCOPE OF APPOINTMENT
Any Receiver may be appointed either Receiver of all the Secured Property or
Receiver of such part of the Secured Property as may be specified in the
appointment. In the latter case, the rights conferred on a Receiver by Clause 9
(Receivers) shall have effect as though every reference in that Clause to the
"SECURED PROPERTY" were a reference to the part of the Secured Property so
specified or any part thereof.
9.3 POWERS OF A RECEIVER
Any Receiver appointed under this Charge shall have all the powers granted to a
receiver under the applicable law and, in addition shall have the right, either
in his own name or in the name of the Borrower or otherwise and in such manner
and upon such terms and conditions as the Receiver thinks fit:
(a) in connection with any sale or disposition of the Secured Property, to
receive the consideration therefor in a lump sum or in instalments and
to receive shares by way of consideration;
(b) to grant options, licences or any other interest whatsoever in relation
to the Secured Property;
(c) to do all other acts and things which he may consider desirable or
necessary for realising the Secured Property or incidental or conducive
to any of the rights, powers or discretions conferred on a Receiver
under, or by virtue of, this Charge; and
(d) to exercise in relation to the Secured Property all the powers,
authorities and things which he would be capable of exercising if he
were the absolute beneficial owner of the same.
9.4 CONFLICT
If there is any ambiguity or conflict between the powers conferred on the
Receiver by the applicable law and the powers conferred by Clause 9.3 (Powers of
a Receiver), the powers conferred by Clause 9.3 (Powers) shall prevail.
-11-
9.5 SECURITY TRUSTEE OF BORROWER
Any Receiver shall be the agent of the Borrower for all purposes and the
Borrower shall be solely responsible for the contracts, engagements, acts,
omissions, defaults and losses of the Receiver and for all liabilities incurred
by the Receiver.
9.6 REMUNERATION
The Secured Party may, from time to time, determine the remuneration of any
Receiver and may direct payment of such remuneration out of moneys accruing to
the Receiver as Receiver but the Borrower alone shall be liable for the payment
of such remuneration and for all other costs, charges and expenses of the
Receiver, unless incurred as the result of the fraud, gross negligence or wilful
misconduct of the Receiver.
10. APPLICATION OF PROCEEDS
Any moneys held or received by the Secured Party under or pursuant to this
Charge shall be applied by the Secured Party in reduction of the amounts due to
the Secured Party under the terms of the Loan Agreement.
11. POWER OF ATTORNEY
11.1 APPOINTMENT
By way of security for the performance of its obligations hereunder, the
Borrower hereby irrevocably appoints the Secured Party, any Receiver of the
Secured Property or any part of it and its delegates and sub-delegates to be its
attorney acting severally (or jointly with any other such attorney or attorneys)
and on its behalf and in its name or otherwise to do any and every thing which
the Borrower is obliged to do under the terms of this Charge or which such
attorney considers necessary in order to enable the Secured Party or such
attorney to exercise the rights conferred on it by this Charge or by law.
11.2 RATIFICATION
The Borrower hereby ratifies and confirms and agrees to ratify and confirm
whatever any attorney appointed under this Charge shall do in its capacity as
such.
12. RELEASE OF THE SECURITY
After the end of the Security Period, the Secured Party shall, at the request
and cost of the Borrower, execute all such documents and do all such other
things as may be required to release the Security, in each case without recourse
to or any representation or warranty by or from the Secured Party.
13. COSTS AND EXPENSES
-12-
13.1 TRANSACTION COSTS
The Borrower agrees with the Secured Party that it shall on demand of the
Secured Party reimburse the Secured Party on a full indemnity basis all costs
and expenses (including legal fees), incurred by, or any remuneration payable to
the Secured Party in connection with the preparation, negotiation, execution and
perfection of this Charge and the implementation of the arrangements
contemplated herein.
13.2 STAMP TAX
The Borrower shall pay any and all stamp, registration and other taxes to which
this Charge or any judgment given in connection herewith is or at any time may
be subject and shall on demand indemnify the Secured Party against any
liabilities, costs, claims and expenses (including legal fees) resulting from
any failure to pay or delay in paying any such tax.
13.3 INDEMNITY
The Borrower shall indemnify and hold harmless the Secured Party from and
against any and all costs, claims losses, expenses (including legal fees) and
liabilities, which the Secured Party may incur as a result of the occurrence of
any Event of Default, the enforcement of the Security or the exercise or
enforcement by the Secured Party of any of the rights conferred on it by this
Charge or by law unless incurred by the Secured Party as a result of its own
fraud, wilful misconduct or gross negligence or the fraud, gross negligence or
wilful misconduct of its delegates and sub-delegates.
14. NO WAIVER; REMEDIES CUMULATIVE
No failure or delay on the part of the Secured Party in exercising any right,
power or privilege hereunder or under any other Financing Document and no course
of dealing between the Borrower and the Secured Party shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, power or
privilege hereunder or under any other Financing Document preclude any other or
further exercise thereof or the exercise of any other right, power or privilege
hereunder or thereunder. No notice to or demand on the Borrower in any case
shall entitle the Borrower to any other or further notice or demand in similar
or other circumstances or constitute a waiver of the rights of the Secured Party
to take any other or further action in any circumstances without notice or
demand. All remedies, either under this Agreement or any other Financing
Document or pursuant to any applicable law or otherwise afforded to the Secured
Party shall be cumulative and not alternative.
15. ADDITIONAL PROVISIONS
15.1 SEVERABILITY
Any provision hereof which is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such prohibition
or unenforceability without invalidating the remaining provisions hereof and
without affecting the validity or enforceability of any provision in any other
jurisdiction.
-13-
15.2 CURRENCY CONVERSION
In order to apply any sum held or received by the Secured Party in or towards
payment of the Secured Obligations, the Secured Party may purchase an amount in
another currency and the rate of exchange to be used shall be that at which, at
such time as it considers appropriate, the Secured Party is able to effect such
purchase.
15.3 JUDGMENT CURRENCY
This is an international transaction in which the specification of Dollars and
payment in the Cayman Islands is of the essence, and the obligations of the
Borrower under this Charge and under the other Financing Documents to make
payment to (or for the account of) the Secured Party in Dollars shall not be
discharged or satisfied by any tender or recovery pursuant to any judgment
expressed in or converted into any other currency or in another place except to
the extent that such tender or recovery results in the effective receipt by the
Secured Party in Cayman of the full amount of Dollars payable to the Secured
Party under this Charge.
(a) If any sum due from the Borrower under this Charge (a "SUM"), or any
order, judgment or award given or made in relation to a Sum, has to be
converted from the currency (the "FIRST CURRENCY") in which that Sum is
payable into another currency (the "SECOND CURRENCY") for the purpose
of:
(i) making or filing a claim or proof against the Company or the
Borrower;
(ii) obtaining or enforcing an order, judgment or award in relation
to any litigation or arbitration proceedings,
the Borrower shall as an independent obligation, within three (3)
Business Days of demand, indemnify the Secured Party against any cost,
loss or liability arising out of or as a result of the conversion
including any discrepancy between (A) the rate of exchange used to
convert that Sum from the First Currency into the Second Currency and
(B) the rate or rates of exchange available to the Secured Party at the
time of its receipt of that Sum.
(b) The Borrower waives any right it may have in any jurisdiction to pay
any amount under this Charge in a currency or currency unit other than
that in which it is expressed to be payable.
15.4 RIGHTS CUMULATIVE
The rights and remedies provided by this Charge are cumulative and not exclusive
of any rights or remedies provided by law.
15.5 MORTGAGEE IN POSSESSION
Neither the Secured Party nor any Receiver shall by reason of its taking any
action permitted by this Charge or its taking possession of the Secured Property
or any part of it be liable to account as mortgagee in possession or be liable
for any loss on realisation or for any default or omission
-14-
for which a mortgagee in possession might be liable other than for its own
fraud, gross negligence and wilful misconduct, or the fraud, gross negligence or
wilful misconduct of its delegates.
16. ASSIGNMENT
16.1 THE BORROWER'S RIGHTS
The rights of the Borrower under this Charge are not assignable or transferable
and the Borrower agrees that it will not purport to assign all or any such
rights.
16.2 THE SECURED PARTY'S RIGHTS
The rights of the Secured Party under this Charge are assignable in whole or in
part and the Secured Party may assign all or any such rights without the consent
of the Borrower. The Secured Party shall provide written notice to the Borrower
of any such assignment.
17. NOTICES
(a) All notices, requests, approvals, consents and other communications
provided for hereunder shall be in writing (including, unless the
context expressly otherwise provides, by facsimile transmission,
provided that any matter transmitted by the Borrower by facsimile (i)
shall be promptly confirmed by a telephone call to the recipient at the
number specified on the applicable signature page hereof, and (ii)
shall be followed promptly by a hard copy original thereof by express
courier) and faxed or delivered, to the address or facsimile number
specified for notices on the applicable signature page hereof or to
such other address as shall be designated by such party in a written
notice to the other parties hereto.
(b) All such notices, requests, approvals, consents and communications (i)
sent by express courier will be effective upon delivery to or refusal
to accept delivery by the addressee, and (ii) transmitted by facsimile
will be effective when sent and facsimile confirmation received; except
that all notices and other communications to any Agent shall not be
effective until actually received.
(c) The Borrower acknowledges and agrees that any agreement of the Secured
Party to receive certain notices by telephone and facsimile is solely
for the convenience and at the request of the Borrower. The Secured
Party shall be entitled to rely on the authority of any Person
purporting to be a Person authorized by the Borrower to give such
notice and the Secured Party shall not have any liability to the
Borrower or other Person on account of any action taken or not taken by
the Secured Party in reliance upon such telephonic or facsimile notice.
(d) All notices, requests and other communications hereunder and under the
other Financing Documents shall be in the English language unless
otherwise agreed by the parties hereto.
-15-
18. GOVERNING LAW AND JURISDICTION
THIS CHARGE IS GOVERNED BY AND SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAW OF
THE BAHAMAS.
19. SUBMISSION
(a) For the exclusive benefit of the Secured Party, the Borrower
irrevocably agrees that the courts of the Bahamas are to have
jurisdiction to settle any claims or disputes arising under, out of or
in connection with this Charge (including without limitation any claim
or dispute relating to the validity, interpretation, performance,
termination or enforcement of this Charge) and that accordingly any
suit, action or proceedings in that respect (together in Clauses 19 and
20 referred to as "PROCEEDINGS") may be brought in such courts.
(b) The Borrower irrevocably waives and agrees not to raise any objection
which it may have now or hereafter to the laying of the venue of any
Proceedings in the courts of the Bahamas and any claim that any such
Proceedings have been brought in an inconvenient or inappropriate
forum.
(c) The Borrower irrevocably agrees not to take Proceedings in any court of
competent jurisdiction other than the courts of the Bahamas, save with
respect to any counterclaim asserted by the Borrower in the course of
proceedings previously commenced by the Secured Party. Nothing
contained in this Clause 19 shall limit the right of the Secured Party
to take Proceedings against the Borrower in any other court of
competent jurisdiction, nor shall the taking of Proceedings in one or
more jurisdictions preclude the taking of Proceedings in any other
jurisdiction, whether concurrently or not.
20. JUDGMENTS AND IMMUNITY
(a) The Borrower recognizes and acknowledges that this Charge constitutes a
commercial transaction and accordingly it acknowledges and agrees that
it is not entitled to plead, and pursuant to this Clause 20 hereby
waives to the fullest extent permitted by law any right to claim,
sovereign immunity for any purpose whatsoever, including, but not
limited to, any right to plead sovereign immunity in respect of any
Proceedings pursuant to this Charge.
(b) The Borrower consents generally, in respect of any Proceedings pursuant
to this Charge for the purpose of enforcing any order, judgment or
award, to the giving of any relief or the issuing of any process in
connection with such order, judgment or award including, without
limitation, the making, enforcement or execution against any property
of any order, judgment or award and to the extent that the Borrower may
be entitled in any jurisdiction to claim for itself or its property
immunity in respect of its obligations under this Charge from any suit,
execution, attachment (whether in aid of execution, before judgment or
otherwise) or legal process or to the extent that in any jurisdiction
there may be attributed to itself or its property such immunity, the
Borrower agrees not to claim and hereby irrevocably waive such immunity
to the fullest extent permitted by the laws of such jurisdiction.
-16-
(c) The Borrower unconditionally and irrevocably agrees, with respect to
any final order, judgment or award in any Proceedings made pursuant to
this Charge and not subject to appeal (a "JUDGMENT"), that:
(i) the Judgment shall be conclusive and binding upon it;
(ii) it shall be bound by and recognize the Judgment in any
jurisdiction;
(iii) to the extent permitted by law, it shall not claim, invoke on
its behalf or for its benefit any right it may have under the
laws of the Bahamas, or any other state or jurisdiction, to
prevent, delay, hinder, nullify or in any other way obstruct
the enforcement or execution of the Judgment; and
(iv) to the extent permitted by law, it shall not, and shall
irrevocably waive any right to, challenge the Judgment on any
ground or the enforcement or execution of the Judgment in any
jurisdiction (other than by way of appeal in the original
jurisdiction).
21. COUNTERPARTS AND EFFECTIVENESS
21.1 COUNTERPARTS
This Charge may be executed in any number of counterparts and by the different
parties hereto on separate counterparts, each of which when so executed and
delivered shall be an original, but all of which shall together constitute one
and the same instrument.
21.2 EFFECTIVENESS
This Charge shall take effect and be delivered as a deed on the date on which it
is stated to be made.
22. AMENDMENT OR WAIVER
No provision of this Agreement may be amended, supplemented, modified or waived,
except by written instrument signed by each of the parties hereto.
* * *
-17-
IN WITNESS WHEREOF this Charge has been executed as a deed by the parties hereto
and has been delivered on date stated at the beginning of this Deed.
THE BORROWER )
Executed on behalf of )
CONSOLIDATED WATER CO. LTD. )
as a deed by: )
Name:
Title:
Address:
Fax Number:
Attention:
SECURED PARTY )
EXECUTED ON BEHALF OF )
SCOTIABANK (CAYMAN ISLANDS) LTD. )
as a deed by:
Name:
Title:
Address:
Fax Number:
Attention:
By its execution of this Equitable Charge of Shares, WATERFIELDS
COMPANY LIMITED hereby acknowledges the terms and conditions hereof, and
irrevocably undertakes that should the Secured Party exercise its rights under
this Equitable Charge of Shares, Waterfields Company Limited shall not take any
action, or fail to take any required action, which would have the effect of
frustrating the Secured Party's ability to be recorded in the Register of
Members as the registered legal and beneficial owner of the Shares.
WATERFIELDS COMPANY LIMITED
Name:
Title:
