EXHIBIT 10.50
GUARANTEE
THIS GUARANTEE is made in Grand Cayman, Cayman Islands, this 11th day of Feb,
Two Thousand and Three
BY: -
CONSOLIDATED WATER COMPANY LIMITED, a company duly incorporated in the Cayman
Islands and having its principal executive offices Trafalgar Place, West Bay,
Grand Cayman ("CWCO"),
TO: -
THE GOVERNOR OF THE CAYMAN ISLANDS ("Governor")
WHEREAS: -
A. Pursuant to a Licence to Produce Potable Water from Seawater made the
25th day of April 1994, as amended by and Amendment and a Supplemental
Licence, both dated the 29th day of February, 1996 ("the Licence"), and
further amended on the 30th day of January 2001, between the Governor,
the Water Authority-Cayman ("the Authority"), and Ocean Conversion
(Cayman) Ltd. ("the Company"), the Company has contractual obligations
in connection with the supply to the Government and the Authority of
certain quantities of potable water and other obligations.
B. A requirement of the Licence is that Xxxxxx Xxxxxxx Ltd. ("EGL")
guarantee the obligations of OCL to the Government and the Authority
under the License if the Company fails to fulfill those obligations,
which guarantee was provided by EGL on the 5th day of May, 1994 ("the
EGL Guarantee")
C. In connection with the acquisition of the Company by CWCO, CWCO shall
guarantee the obligations of the Company to the Government and the
Authority under the License if the Company fails to fulfill those
obligations, which guarantee CWCO has agreed to provide on the terms
contained in this Guarantee, replacing the EGL Guarantee.
NOW THIS GUARANTEE WITNESSES as follows:
1. In this Guarantee "the Licence" means the Agreement, as amended,
referred to in Recital A.
2. (a) CWCO guarantees to pay to the Government within twenty-one
(21) days of demand all money now or hereafter due or owing or
incurred by the Company to the Government or the Authority in
whatever currency denominated pursuant to the Licence on a
full indemnity basis, and guarantees the performance by the
Company of all its other obligations to the Government and the
Authority under the Licence within thirty (30) days of written
notice from the Government.
(b) CWCO furthermore assumes any and all past or present liability
of EGL under the terms of the EGL Guarantee that was or may be
incurred during the period from the date of the commencement
to the date of termination of the EGL Guarantee (the
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"EGL Guarantee Period"), and CWCO guarantees to pay to the
Government within twenty-one (21) days of demand all money due
or owing or incurred by the company to the Government or the
Authority during the EGL Guarantee Period.
(c) The liability of CWCO shall not be affected nor shall this
Guarantee be discharged or diminished by reason of:-
(i) Any past, present or future security or right or
remedy held by or available to the Government or the
Authority becoming or being wholly or part void,
voidable or unenforceable on any ground whatsoever or
by the Government or the Authority dealing with
exchanging, varying, realizing or releasing or
failing to perfect or enforce any of them, or;
the Government or the Authority compounding with
discharging, releasing, or granting any time,
indulgence, or concession to the Company, or;
any act or omission which would not have discharged
or affected the liability of CWCO had it been a
principal debtor instead of a guarantor or by
anything done or omitted which but for this provision
might operate to exonerate CWCO.
3. Costs
All costs, legal fees, and other expenses in the preparation and
execution of this Guarantee shall be borne and paid by the party
incurring the cost.
4. Successors and Assigns
This Guarantee shall endure for the benefit of and be binding on the
respective successors in title and permitted assigns of each party and
CWCO shall procure that each transferee of the benefit of the Licence
shall execute a deed with the other party by which the transferee
agrees to be bound by terms identical, mutatis mutandis, to the terms
of this Guarantee (including the terms of this clause).
5. Waiver, Forbearance Variation and Term
(a) The rights of either party shall not be prejudiced or
restricted by indulgence or forbearance extended to the other
party in respect of any breach.
(b) Subject to the provisions of sub-clause 5(c) and (d) below,
this Guarantee shall not be varied or canceled, unless the
variation or cancellation is expressly agreed in writing by a
duly authorized director of each party.
(c) For the avoidance of doubt this Guarantee by CWCO relates only
to the covenants of the Company under the Licence and shall
expire upon the termination of the Licence for whatever
reason, and shall thereafter be null and void and of no
further effect whatsoever, except in relation to liabilities
existing at the date of termination of the Licence.
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(d) This Guarantee shall cease and be of no further effect
immediately on the variation of the terms of the Licence in
accordance with clause 31 of the Licence, unless such
variation is approved in writing by CWCO.
6. Governing Law
The construction, validity and performance of this Guarantee shall
be governed in all respects by Cayman Islands Law.
Except as may be set out elsewhere in this Guarantee, the Grand
Court of the Cayman Islands shall have jurisdiction to settle any
dispute which may arise between the parties in respect of the
construction, validity, or performance of this Guarantee or as to
the rights and liabilities of the parties under it.
7. Severability
If any of the provisions of this Guarantee is found by any court or
other competent authority to be void or unenforceable, that provision
shall be deemed to be deleted from this Guarantee and the remaining
provisions of this Guarantee shall continue in full force and effect.
Notwithstanding the foregoing, the parties shall thereupon negotiate in
good faith in order to agree the terms of a mutually satisfactory
provision to be substituted for the provision so found to be void or
unenforceable.
8. General Matters
(a) This Guarantee supersedes any previous agreement between the
parties in relation to the matters dealt with in it and
represents the entire understanding between the parties in
relation to them.
(b) Words denoting the singular number only include the plural and
vice versa.
(c) Unless the context otherwise requires, reference to any clause
is to a clause of this Guarantee.
(d) The headings in this Guarantee are inserted for convenience
only and shall not effect the construction of it.
9. Notices
Any notices to be given under this Guarantee shall be sent by
registered mail. The address for service of each party shall be its
address stated above or any other address for service previously
notified to the other party or (in the absence of any such
notification) its last known address. A notice shall be deemed to have
been served at the time of delivery. In proving such service, it shall
be sufficient to prove that delivery was made.
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SIGNED for and on behalf of Consolidated Water Company Ltd.
Consolidated Water Company Ltd. by
Xxxxxxxxx X. XxXxxxxxx, Director, )
and Xxxxx Xxxxxxx, Secretary,
in the presence of: ) Per: /s/ X.X. XxXxxxxxx
) ------------------------
) Director
/s/ X. Xxxxxx
------------------------------- Per: /s/ X.X. Xxxxxxx
Witness Xxxxx Xxxxxx -----------------------
Management Accountant
P.O. Box 1114GT Grand Cayman
PROBATE
BE IT REMEMBERED that on this 11th day of February, 2003, before me the
undersigned a Notary Public in and for Cayman Islands personally came and
appeared one Xxxxx Xxxxxx an attesting witness to the due execution of the
within Guarantee who being by me duly sworn made oath and said that he was
present and did see X.X. XxXxxxxxx and X.X. Xxxxxxx, Director and Secretary
respectively of Consolidated Water Company Ltd., sign, seal, and as for the
proper act and deed of Consolidated Water Company Ltd. execute, acknowledge, and
deliver said Guarantee for the purposes therein mentioned.
/s/ Xxxxx Xxxxxx /s/ Xxxxxxx X. Xxxxxx
----------------------- -----------------------------
Witness Xxxxx Xxxxxx NOTARY PUBLIC in and for
Management Accountant Cayman Islands (my commission
X.X. Xxx 0000XX, Xxxxxx Xxxxxxx expires 1/31/04)
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