EXHIBIT 10.47
THIS DEED OF SUBSTITUTED DEBENTURE made on February 7, 2003
BETWEEN:-
(1) CONSOLIDATED WATER CO. LTD. incorporated under the laws of the Cayman
Islands of P.O. Box 1114 G.T. Grand Cayman (the "Company", which
expression shall include its successors and assigns); and
(2) SCOTIABANK (CAYMAN ISLANDS) LTD. incorporated under the laws of and
licensed to carry on banking business in the Cayman Islands of ▇.▇.▇▇▇
689 G.T. Grand Cayman (the "Bank", which expression shall include its
successors, transferees and assigns);
WHEREAS
A. The Royal Bank of Canada ("RBC") has made available to the Company a
revolving loan facility in the amount of US$3,000,000.00 ("the RBC
Facility").
B. As security for the RBC Facility the Company entered into a Debenture
dated 1st.June 1979 between,inter alia, the Company and RBC ("the RBC
Debenture")( the same having been amended from time to time and stamped
ad valorem to the full amount of the RBC Facility) together with
certain collateral land charges over over various parcels of land owned
by the Company ( as varied from time to time (together referred to as
"the RBC Security").
C. Pursuant to a Deed of Assignment of even date herewith and in
consideration of the payment made thereunder by the Bank to RBC, RBC
has assigned all of its rights, title and interest in the RBC Security
to the Bank
D. The Bank has, pursuant to a loan agreement ("the Loan Agreement")
bearing even date herewith agreed to make available to the Company
certain loans not exceeding US$39,100,000.00.
E. The parties have agreed to substitute this Debenture for the RBC
Debenture as security for the indebtedness of the Company to the Bank
under the terms of the Loan Agreement.
F. To further secure the loans made available to the Company by the Bank
under the Loan Agreement and in addition to the RBC Security the Bank
will take such additional security as agreed with the Company, such
additional security to be supplemental and collateral hereto and in
such form and on such terms as the Loan Agreement shall require or the
parties shall otherwise agree.
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WITNESSES as follows:-
1. DEFINITIONS AND INTERPRETATION
1.1 In this Deed of Debenture, unless the contrary shall be expressed or
the context shall otherwise require:-
(1) the following words and expressions shall have the following meanings,
that is to say:-
"ACCOUNT BANK" means each of the Bank and any other bank or financial
institution for the time being and from time to time approved by the Bank in
writing as a bank or other financial institution with whom the Company may have
an account or accounts into which the Company may pay its Trading Debts. Such
approval may be given as well before as on or after the date hereof, provided
that it shall expressly refer to this Debenture.
"AGREEMENT" means the Loan Agreement and all other (if any) agreements (other
than these presents) for the time being and from time to time in force between
the Bank and the Company (and whether entered into before or after this
Debenture) regulating any business relationship between the Company and the
Bank.
"ASSETS" means assets of every kind, including, but without limitation, the
benefit of an agreement, a building or other fixture, a business, goods,
goodwill, immovable property, money, plant or other equipment, stock-in-trade,
the uncalled capital of a body corporate, an undertaking and work-in-progress
and any interest therein and, as the context shall require or admit, any part of
such assets.
"BANK ACCOUNTS" means all the Charged Assets in Clauses 3.1(3)(p) and (q) and
"Bank Account" shall be construed accordingly.
"CHARGED ASSETS" means all the assets of the Company for the time being and from
time to time the subject of or expressed to be the subject of any interest by
way of security created by the Company in favour of the Bank under or pursuant
to these presents or a Land Charge and, as the context shall require or admit,
any part of such assets. A reference to Charged Assets in a particular
Sub-clause or Sub-clauses of Clause 3.1 is a reference to the assets becoming or
being expressed to become the subject of such an interest by way of security as
a result of a reference to them being made in that Sub-clause or those
Sub-clauses, respectively.
"DELEGATE" means a delegate or sub-delegate of the Bank described in Clause
9(3).
"THIS DEBENTURE" means this Deed of Substituted Debenture.
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"FINANCE LEASE" shall have the meaning given in the Statement of Standard
Accounting Practice number 21 issued by the Institute of Chartered Accountants
in England and Wales.
"GUARANTOR" means any person who shall for the time being and from time to time
guarantee to the Bank the payment or discharge of the Indebtedness, and
references to the "relevant guarantee" shall be construed accordingly.
"IMMOVEABLE PROPERTY" means any freehold, leasehold, heritable or other land or
buildings wheresoever situate and any estate or interest therein, and shall,
where the context shall admit, include any part thereof.
"IMMOVEABLE PROPERTY" means all the Charged Assets in Clauses 3.1(1) and 3.1(2)
and, as the context shall require or admit, any part of such Charged Assets.
"INDEBTEDNESS" means all monies, liabilities and other sums of whatsoever nature
covenanted to be paid and discharged by the Company to the Bank under Clause 2
and, as the context shall require or admit, any part of such monies, liabilities
and other sums.
"INTELLECTUAL PROPERTY" means all the Charged Assets in Clauses 3.1(3) (j) and
(k) and, as the context shall require or admit, any part of such Charged Assets.
"INTEREST BY WAY OF SECURITY" means any mortgage, pledge, lien, charge,
assignment by way of security, hypothecation, title retention, finance lease,
factoring or discounting of debts or any other agreement or arrangement for or
by way of security, including such as arises or is imposed by operation or
implication of applicable law and including any account with bankers earmarked
or designated for the use of making preferential payments pursuant to Section
162 of The Companies Law (2002 Revision) or any other provision of applicable
law having similar or substantially similar effect.
"LAND CHARGE" means a collateral land charge of Immoveable Property executed by
the Company in favour of the Bank pursuant to Clause 3.4, and "Land Charges"
shall be construed accordingly.
"LOAN AGREEMENT" means the Loan Agreement entered into between the Company and
the Bank bearing even date herewith setting out the terms and conditions of the
loan facility and shall be construed so as to include the Loan Agreement as the
same may for the time being and from time to time be modified amended or
supplemented
"NON-REALTY CHARGED ASSETS" means the Charged Assets excluding Immoveable
Property.
"NON-TRADING DEBTS" means all the Charged Assets in Clause 3.1(3)(d) and, as the
context shall require or admit, any part of such Charged Assets.
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"PERSON" means an individual, a firm, a partnership (whether of not having
separate legal personality), an unincorporated body, a body corporate, a
corporation and a national or local government or governmental agency or body,
and, in each case, wheresoever resident, incorporated or formed.
"PLANNING LEGISLATION" means all applicable statutes for the time being and from
time to time in force in relation to the use or development of immoveable
property and all regulations then made or taking effect as if made thereunder.
"PROHIBITED SECURITY INTEREST" means any interest by way of security other
than:-
(a) such as arises or is imposed by operation or implication of law and is
not intended to arise for that purpose;
(b) any agreement or arrangement for the retention of title to goods which
is not entered into for the purpose of raising finance;
(c) such as arises as a result of normal banking arrangements of the
Company with an Account Bank in respect of the collection of cheques
(including cheques expressed in a foreign currency) in respect of the
collection of Trading Debts; and
(d) the security hereby constituted.
"RECEIVER" includes any receiver or receiver and manager.
"RECEIVER" means any individual or individuals (who may be an employee or
employees of the Bank) for the time being and from time to time appointed by the
Bank to be a receiver or receivers (and, where more than one individual is
appointed jointly, they shall have the power to act severally, unless the Bank
shall specify to the contrary in their appointment) under these presents and,
where the context shall admit, any individual or individuals for the time being
and from time to time so appointed in substitution.
"SECURITY HEREBY CONSTITUTED" means the interests by way of security from the
time being and from time to time constituted by or in pursuance of these
presents and includes interests by way of collateral security and, as the
context shall require or admit, any such interests, but does not include Land
Charges.
"SPECIFICALLY CHARGED ASSETS" means all the Charged Assets in the Sub-clauses to
Clauses 3.1(1), (2) and (3) and, as the context shall require or admit, any part
of such Charged Assets.
"SPECIFICALLY CHARGED PLANT" means all the Charged Assets in Clauses 3.1(3)(a)
and (b) and, as the context shall require or admit, any part of such Charged
Assets.
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"SPECIFICALLY CHARGED SECURITIES" means all the Charged Assets in Clauses
3.1(3)(e), (f) and (g) and, as the context shall require or admit, any part of
such Charged Assets.
"THESE PRESENTS" means this Debenture and any deed for the time being and from
time to time expressed to be supplemental hereto and any other deed or document
for the time being from time to time conferring rights upon the Bank or to which
it may be a party executed or entered into pursuant to this Debenture or any
deed for the time being and from time to time supplemental thereto, but does not
include Land Charges.
"TRADING DEBTS" means all the Charged Assets in Clause 3.1(3)(c) and, as the
context shall require or admit, any part of such Charged Assets.
(2) words and expressions (including defined words and expressions)
importing the singular number include the plural and vice versa and
those importing the masculine gender include and feminine.
(3) any reference to:-
(a) any law or legal provisions is to that law or provision as for
the time being and from time to time amended, extended or
substantially replaced or re-enacted, and shall include a
reference to any regulations made under the law or provision.
(b) fees, costs, charges and expenses shall include a reference to
any transactional tax or duty for the time being and from time
to time applicable to or chargeable in respect of those fees,
costs, charges and expenses.
(c) a Clause or Schedule is a clause in, or a schedule to, this
Debenture.
(d) a Sub-clause is to a sub-clause in the clause or sub-clause in
this Debenture in which that reference is made.
1.2 Underlinings, headings and descriptions of provisions of this Debenture
are inserted for convenience only and shall be ignored in construing or
interpreting this Debenture.
1.3 Reference to a "Law" shall include a reference to such Law and/or any
provision thereof as from time to time re-enacted, amended, extended or
replaced.
2. MONIES SECURED
The Company will, on demand, pay and discharge to the Bank:-
(1) Monies: all monies and other liabilities, whether principal, interest,
commission, charges, costs, expenses or otherwise, which now are, or at
any time hereafter may become, due or
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owing to the Bank by the Company either alone or jointly with any other
person whether actual or contingent and whether as principal debtor,
guarantor, surety or otherwise;
(2) Costs: on a full and unlimited indemnity basis, all costs, stamp
duties, recording fees, commission, charges, expenses and other sums
for the time being and from time to time incurred by the Bank or by or
through any Receiver or by or through any attorney, delegate,
sub-delegate, substitute, agent or employee of the Bank or a Receiver,
for any of the purposes described in these presents or a Land Charge or
in or about the exercise of any power, authority or discretion
conferred on the Bank or any Receiver by or pursuant to these presents
or a Land Charge or by law or in relation to the security hereby
constituted or a Land Charge or in or about the protection,
realisation, enforcement, collection or recovery of monies for the time
being and from time to time arising under the security hereby
constituted or a Land Charge and all remuneration of any Receiver and
any attorney, delegate, sub-delegate, substitute or agent of the Bank
or a Receiver; and
(3) Interest: interest, as well before as after judgment, on each amount
due under Sub-clauses (1) and (2) until the same shall have been fully
discharged at such rate as shall for the time being and from time to
time be prescribed by the Agreement for that amount and, in the case of
each such amount due under Sub-clause (2), such interest to accrue on a
daily basis as from the date on which that amount was incurred (and
whether or not that date shall have occurred prior to a demand for that
amount under this Clause 2).
3. THE CHARGES
3.1 Charging Provision
The Company, as beneficial owner and as continuing security for the
Indebtedness, hereby charges to the Bank:-
Immoveable Property
(1) by way of first specific equitable charge:-
(a) all (if any) the immoveable property described in Schedule 1;
(b) all other immoveable property belonging to the Company at the
date hereof; and
(c) all fixtures (including trade fixtures) and fixed plant and
machinery for the time being and from time to time on or in
any of the Immoveable Property in Sub-clause (a) and (b);
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(2) by way of first specific equitable charge:-
(a) all immoveable property (other than that (if any) described in
Schedule 1) now or at any time hereafter belonging to the
Company or in which the Company does now or shall at any time
hereafter have any interest by way of security; and
(b) all fixtures (including trade fixtures) and fixed plant and
machinery for the time being and from time to time on or in
any of the Immoveable Property in Sub-clause (a);
(3) by way of first specific charge:-
Specifically Charged Plant
(a) all (if any) the plant, machinery, chattels and other
equipment described in Schedule 2 and any part or parts
thereof or thereto;
(b) all additions, alterations, accessories, replacements and
renewals for the time being and from time to time to or of any
of the Charged Assets in Sub-clause (a);
Trading Debts
(c) all debts, other than Non-Trading Debts, now or hereafter due
or owing or to become due or owing to the Company on any
account whatsoever and whether actual or contingent and
including cash at bank, as have arisen or shall arise in the
ordinary and usual course of trading of the Company and
whether or not the same would or shall be entered into the
books of the Company;
Non-Trading Debts
(d) all debts now or hereafter due or owing or to become due or
owing to the Company on any account whatsoever and whether
actual or contingent as have arisen or shall arise (and
whether or not entered into the books of the Company):-
(i) as an amount for the time being and from time to time
payable (including, but without limitation, any
consideration, premium, rent, royalty or fee) in
respect of any sale, lease, licence or other disposal
by the Company of any of the Immoveable Property, the
Specifically Charged Plant, the Specifically Charged
Securities, the goodwill of the Company both present
and future and the Intellectual Property;
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(ii) as a dividend, interest or other distribution for the
time being and from time to time declared and/or
payable in relation to the Specifically Charged
Securities;
(iii) as an amount for the time being and from time to time
payable in respect of an obligation or representation
or a warranty described in Sub-clause (m) or
insurance or a guarantee or interest by way of
security described in Sub-clause (n); or
(iv) as an amount for the time being and from time to time
payable in respect of any other transaction or matter
outside the ordinary and usual course of trading of
the Company;
Specifically Charged Securities
(e) all the stocks, shares, bonds, debentures, loan stocks, notes,
warrants and other securities now or hereafter belonging to
the Company in the capital of, or issued by, any of the
Company's subsidiaries for the time being and from time to
time;
(f) all the stocks, shares, bonds, debentures, loan stocks, notes,
warrants and other securities now or hereafter belonging to
the Company, or, instead, such (if any) as are described in
Schedule 3, or, instead, if none shall be listed in that
Schedule, none, other than, in each such case, the Charged
Assets in Sub-clause (e);
(g) all stocks, shares, bonds, debentures, loan stocks, notes,
warrants and other securities and other assets now or
hereafter accruing or offered by way of rights, bonus, option
or otherwise in respect of any of the Charged Assets in
Sub-clauses (e) and (f) or in this Sub-clause (g) but so that
nothing in these presents shall be construed as imposing on
the Bank any liability whatsoever in respect of any calls,
instalments or other payments or contributions in respect of
or relating to any of the Charged Assets in Sub-clauses (e)
and (f) or in this Sub-clause (g);
(h) all dividends, interest and other distributions for the time
being and from time to time declared, payable paid or made in
respect of any of the Charged Assets in Sub-clauses (e), (f)
or (g), including any of the same for the time being and from
time to time placed to the credit of an account of the Company
with, and owed to the Company by, a bank or other financial
institution and/or being cash at bank belonging to the
Company;
Goodwill and uncalled capital
(i) all the goodwill and uncalled capital of the Company, both
present and future;
Intellectual Property
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(j) all the knowhow (and rights therein) and other confidential
information (and rights therein) and all the copyrights,
patents (including applications, improvements, prolongations,
extensions and rights to apply therefor), registered designs,
trade marks (and rights therein), service marks (and rights
therein) and other intellectual property of the Company, both
present and future;
(k) the benefit of all licences for the time being and from time
to time granted to or acquired by the Company in respect of
assets of the kind described in Sub-clause (j);
Ancillary assets
(l) the benefit of all agreements for the time being and from time
to time entered into by the Company for the maintenance and/or
improvement of any of the Charged Assets in any of the
foregoing Sub-clauses in this Clause 3.1;
(m) the benefit of all obligations and representations and
warranties for the time being and from time to time undertaken
or given to the Company (and whether by law, contract or
otherwise howsoever) by any person in relation to any of the
Charged Assets in any of the foregoing Sub-clauses of this
Clause 3.1;
(n) the benefit for the time being and from time to time of any
insurance for the time being and from time to time effected by
the Company in respect of, and the benefit and proceeds for
the time being and from time to time of any guarantees or
interests by way of security for the time being and from time
to time given, granted or arising in favour of the Company in
relation to any of the Charged Assets in any of the foregoing
Sub-clauses of this Clause 3.1;
(o) the proceeds including cash at bank for the time being and
from time to time received by the Company of a payment in
respect of, or a disposal, collection or other realisation of,
any of the Charged Assets in any of the foregoing Sub-clauses
of this Clause 3.1;
Bank Accounts
(p) the full benefit for the time being and from time to time of,
and all the Company's rights, title and interest in and to,
all (if any) the bank accounts described in Schedule 4, and
the debts constituted and represented by the credit balances
for the time being and from time to time on such accounts,
together with all interest for the time being and from time to
time accrued thereon;
(q) the full benefit for the time being and from time to time of,
and all the Company's rights, title and interest in and to,
all other bank accounts of the Company at the date hereof, and
the debts constituted and represented by the credit balances
for the time
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being and from time to time on such accounts, together with
all interest for the time being and from time to time accrued
thereon; and
Other assets
(4) by way of first floating charge:-
(a) the undertaking and all the other assets of the Company (other
than the Specifically Charged Assets), both present and
future; and
(b) all the Specifically Charged Assets if and to the extent that
any of the interests by way of security constituted by these
presents over the Specifically Charged Assets shall be or
become ineffective as specific charges.
3.2 Crystallisation of floating charge
The floating charge created by Clause 3.1(4) shall become a specific charge:-
(1) as regards any assets subject thereto as may from time to time
be specified in a notice from the Bank to the Company if the
Bank shall, in its absolute discretion, consider that those
assets shall be in danger of being seized or sold under any
form of distress or execution levied or threatened or to be
otherwise in jeopardy, forthwith upon the service of such
notice;
(2) as regards any assets subject thereto which shall become
subject to specific charges in favour of any person other than
the Bank or subject to a disposition or an agreement to make a
disposition contrary to Clause 5(21) (Disposal of Specifically
Charged Assets), forthwith upon such charge or disposition;
and
(3) in accordance with Clause 6 (Events of Default).
3.3 Negative pledge
Save with the prior written consent of the Bank (which may be given as well
before as after the date hereof, provided it shall expressly refer to this
Debenture), the Company shall not and shall not agree to create, give, grant or
permit to arise or subsist over any of its assets present and future any
Prohibited Security Interest ranking in point or security in priority to, pari
passu with or subsequent to any security constituted by these presents or any
Land Charge.
3.4 Land Charges
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Without prejudice to Clause 5(2) (Further Charges), the Company shall forthwith
execute in favour of the Bank collateral land charges in such form and on such
terms as the Bank shall require of all the immoveable property described in
Schedule 1, and of any other Immoveable Property as the Bank may for the time
being and from time to time require.
4. REPRESENTATIONS & WARRANTIES
The Company hereby represents and warrants to the Bank, as follows:-
(1) The Company has the power to enter into and perform its obligations as
expressed in this Debenture and each Land Charge and has taken all
necessary action to authorise the granting of interests by way of
security upon the terms and conditions of this Debenture and each Land
Charge and to authorise the execution, delivery and performance of its
obligations as expressed in this Debenture and each Land Charge in
accordance with their respective terms.
(2) The execution, delivery and performance by the Company of the terms of
this Debenture and each Land Charge does not and will not violate,
conflict with or result in a breach of, in any respect:-
(a) any provisions of any law or regulation or any order, decree,
permit or licence of any authority, agency or court binding on
the Company or on any of its assets; or
(b) the constitutional documents or resolutions of the Company; or
(c) any subsisting loan stock or debenture or other deed, contract
or other undertaking or instrument to which the Company is a
party or which is binding upon it or any of its assets.
(3) The Company is the sole and absolute beneficial owner of all the
Charged Assets free from all Prohibited Security Interests other than
those permitted or consented to by the Bank in accordance with Clause
3.3 (Negative pledge).
(4) The Company has not created, given, granted or permitted to arise or
subsist any Prohibited Security Interest over any of its assets present
and future other than those permitted or consented to by the Bank in
accordance with Clause 3.3, and has not agreed so to do.
(5) In connection with any consent given by the Bank in accordance with
Clause 3.3 on or prior to the date hereof, the Company did furnish to
the Bank true, complete and up to date written details of the existing
interest(s) by way of security to which such consent relates.
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(6) The details of (if any) the immoveable property and the other assets in
Schedules 1, 2, 3 and 4, the interests of the Company (in that
immoveable property) in Schedule 1, and the location of the
Specifically Charged Plant in Schedule 2, and the details of the bank
accounts in Schedule 4 are true and correct in every material
particular.
5. COVENANTS
The Company hereby covenants and agrees with the Bank, until the discharge and
release of this Debenture, as follows:-
(1) Documents of title to Immoveable Property and Specifically Charged
Plant and Securities
Subject to the rights of any prior mortgagee, the Company shall deposit with the
Bank and the Bank shall be entitled to hold and retain all deeds and documents
of title for the time being and from time to time relating to the Immoveable
Property, all invoices and documents of title for the time being and from time
to time relating to the Specifically Charged Plant, and all certificates, deeds
and documents of title for the time being and from time to time relating to the
Specifically Charged Securities.
(2) Further charges
The Company shall forthwith from time to time, if and when called upon by the
Bank so to do, execute in favour of the Bank or as the Bank shall direct such
further interests by way of security (including, but without limitation,
assignments by way of security and collateral security) as the Bank shall
require (but the covenants no more onerous than already contained in the
security hereby constituted) over the Charged Assets as further and continuing
security for the Indebtedness, such further interest by way of security to be
prepared by or on behalf of the Bank at the cost of the Company and, in the
event of any consent thereto being required from any other person, the Company
shall use its best endeavours to obtain the same.
(3) Future Immoveable Property, Specifically Charged Plant and Securities
The Company shall notify the Bank forthwith upon any proposal or contract for
the time being and from time to time being made by the Company to acquire any
immoveable property or other assets which, following their acquisition would
become Immoveable Property, Specifically Charged Plant or Specifically Charged
Securities (as the case may be) and, in the case of any such immoveable property
the Company shall notify the Bank of the title number(s) thereof and shall apply
to The Registrar of Lands for the registration of the Company as the registered
proprietor thereof.
(4) Maintenance
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The Company shall:-
(a) keep all buildings, fixtures (including trade fixtures) and fixed plant
and machinery for the time being and from time to time on or in any of
the Immoveable Property and all plant, machinery, other fixtures and
fittings, implements, tools and other effects thereon and therein in a
good state of repair and good working order and condition and shall, as
necessary, renew and replace the same to a similar quality, as and when
the same shall be worn out or destroyed; and
(b) keep the Specifically Charged Plant in a good state of repair and
condition and perfect working order and replace any part or parts
thereof as may for the time being and from time to time be or become
worn out, damaged or destroyed with new parts of similar quality.
(5) Insurance
The Company shall:-
(a) insure and keep insured such of its assets as are of an insurable
nature against loss or damage by fire, aircraft, things dropping from
aircraft, explosion, tropical storm, ▇▇▇▇▇, ▇▇▇▇▇▇▇, flood, burst
pipes, hurricane, windstorm, riot and impact and such other risks as
the Bank may, for the time being and from time to time, consider
necessary, to the full reinstatement value thereof, together with
additional amounts sufficient to cover architects' and surveyors' fees
and the costs of demolition, site clearance and shoring up or in such
other amount as the Bank may in writing from time to time approve, with
such reputable insurers and generally in such manner as the Bank shall
from time to time approve in writing. The Company shall cause notice of
the interest of the Bank to be noted on the policies of such insurance
which (subject to the rights of any prior mortgagee) shall, unless
otherwise from time to time agreed by the Bank in writing, be delivered
to and retained by the Bank. The Company shall duly pay the premiums
and other sums of money for the time being and from time to time being
payable in respect of any such insurance and, immediately after every
such payment, produce the receipt for the same to the Bank. All monies
which may at any time hereafter be received or receivable under any
insurance for the time being and from time to time effected in respect
of the Immoveable Property or the Specifically Charged Plant (and
whether or not effected pursuant to the foregoing provisions of this
Sub-clause (a)) shall be applied in replacing, restoring or reinstating
the assets destroyed or damaged or (subject to the rights of any prior
mortgagee) in such other manner as the Bank shall require;
(b) effect and maintain or cause to be effected and maintained such other
insurances as are normally for the time being and from time to time
maintained by prudent companies carrying on businesses similar or
approximately similar to those for the time being and from time to time
carried on by the Company including but not limited to consequential
loss and loss of profits; and
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(c) not in any manner or by any means cause any such insurance to be
avoided or vitiated.
(6) Registration under The Registered Land Law
The Company shall not, without the prior written consent of the Bank, register
any person or cause any person to be registered under The Registered Land Law
(1995 Revision) and any subsequent Registered Land Laws as the proprietor of the
Company's interest in any of the Immoveable Property or any part thereof.
(7) Notices affecting Immoveable Property or Specifically Charged Plant
The Company shall, in the event of a notice, order, direction, requisition or
permission or a proposal for any of the foregoing being served, affecting or
likely to affect the Immoveable Property or the Specifically Charged Plant or in
the event of any proceedings being commenced affecting or likely to affect the
same, immediately give full particulars thereof to the Bank and without delay
and at the Company's own cost take all reasonable or necessary steps to comply
with the same and/or, if so requested by the Bank, at the Company's own cost
make or join with the Bank in making such objections or representations against
or in respect of any of the same as the Bank shall deem expedient.
(8) Planning Legislation
The Company shall not carry out any development in or upon the Immoveable
Property within the meaning of the Planning Legislation without first obtaining
such permission as may be required under or by virtue of the Planning
Legislation and the Company shall use the Immoveable Property only for such
purpose or purposes as may for the time being and from time to time be
authorised as the permitted use or user thereof under or by virtue of the
Planning Legislation.
(9) Other compliance with law
The Company shall, in relation to its business and other assets for the time
being and from time to time, comply with all obligations under any present or
future statute, regulation, order or instrument or under any bye-law, regulation
or requirement of any competent authority and shall not use or permit any of its
assets for the time being from time to time to be used in contravention of any
legislation or otherwise or in any way contrary to law and shall as and when the
same shall become payable pay all taxes, rates, duties, charges, assessments and
other outgoings whatsoever (whether governmental, parochial, local or of any
other description) which shall be assessed, charged or imposed upon or payable
in respect of its business and other assets for the time being and from time to
time.
(10) Compliance with contracts
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(a) The Company shall duly and punctually perform and observe all the
covenants, agreements and other stipulations whatsoever as are not
inconsistent with its obligations under these presents and as shall for
the time being and from time to time be binding upon it, its business
or other assets for the time being and from time to time and shall not
do or suffer to be done any act or thing whereby any lease or licence
for the time being and from time to time granted to or held by the
Company may become liable to forfeiture or otherwise be determined.
(b) The Company shall indemnify and hold harmless the Bank in respect of
any breach of any covenants, agreements or stipulations for the time
being and from time to time affecting the Immoveable Property.
(11) Leases or licences of Immoveable Property and Intellectual Property: as
lessee or licensee
The Company shall not agree, accept, suffer or permit any alteration, variation
or addition to the terms of any lease or licence under which it is for the time
being and from time to time a lessee or licensee and which is for the time being
and from time to time part of the Immoveable Property or the Intellectual
Property, without the prior written consent of the Bank.
(12) Leases or licenses of Immoveable Property and Intellectual Property: as
lessor or licensor
(a) Unless otherwise agreed from time to time in writing by the Bank, the
Company shall enforce the due observance and performance of all the
obligations on the part of the lessee or licensee under any lease or
licence under which it is for the time being and from time to time the
lessor or licensor and which is for the time being and from time to
time part of the Immoveable Property or the Intellectual Property,
shall not waive, release or vary or agree to waive, release or vary any
of the terms of any such lease or licence, shall not exercise any power
to determine or extend any such lease or licence and shall not grant
any consents or licences as lessor or licensor under any such lease or
licence.
(b) The Company shall not, without the prior written consent of the Bank,
grant or agree to grant any lease or licence of, or other right or
interest to occupy, the Immoveable Property or the Intellectual
Property.
(13) Removal and severance
The Company shall not, without the prior written consent of the Bank, pull down
or remove or permit to be pulled down or removed any buildings or erection for
the time being and from time to time included in the Immoveable Property or pull
down, remove or sever or permit to be pulled down, removed or severed any
fixtures (including trade fixtures) and fixed plant and machinery for
16
the time being and from time to time thereon or therein, except in pursuance of
any obligation imposed on the Company under these presents or a Land Charge.
(14) Specifically Charged Plant
(a) Except as may be agreed in writing from time to time by the Bank, the
Company shall keep the Specifically Charged Plant in its sole and
exclusive possession and at the location (if any) specified in Schedule
2 and shall not, in any event, take them out of Cayman Islands and
shall not use or permit them to be used for any purpose for which they
are not designed or reasonably suitable.
(b) The Company shall affix to or engrave on the Specifically Charged Plant
such labels, plates or markings as the Bank shall from time to time
require and shall not allow to be disturbed any labels, plates or
markings which may be affixed to or engraved on the Specifically
Charged Plant as a means of identification by the manufacturers or
suppliers thereof or by any other person and shall not obliterate,
obscure or cover up the same.
(c) The Company shall not at any time without the prior written consent of
the Bank make or suffer to be made any alteration or addition of a
substantial nature in or to the Specifically Charged Plant other than
for the purpose of effecting repairs as required by Sub-clause (4)(b)
(Maintenance).
(d) The Company shall not, without the prior written consent of the Bank,
hire, lease or part with or share possession of or suffer any distress
or execution to be levied or lien to be created upon the Specifically
Charged Plant.
(e) If the Company has created, given, granted or permitted to arise or
subsist, or shall at any time create, give, grant or permit to arise or
subsist, an interest by way of security on any premises where the
Specifically Charged Plant are located, the Company shall forthwith
notify the Bank of the same and, if called upon so to do by the Bank,
shall forthwith procure from any person for the time being and from
time to time enjoying such interest by way of security or being
interested in such premises a waiver in such form as the Bank may from
time to time require of all rights to which such person might otherwise
be entitled to claim in the Specifically Charged Plant.
(f) The Company shall not annex the Specifically Charged Plant to the
premises where the same are located if the results of such annexure
would be that the Specifically Charged Plant might become a fixture or
fixtures.
(g) The Company shall indemnify and hold harmless the Bank against all
claims made or all proceedings brought in respect of any loss or damage
or injury whatsoever arising out of or in connection with the
Specifically Charged Plant, their manufacture, selection, delivery,
possession, use or operation.
(15) Debts and Bank Accounts
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(a) The Company shall, subject to Sub-clauses (b), (c) and (d), get in and
realise the Trading Debts and the Non-Trading Debts and shall not sell,
assign, factor or discount the same in any way.
(b) The Company shall pay into an account with an Account Bank the proceeds
of the collection or other realisation for the time being and from time
to time of the Trading Debts (other than debts owed by an Account Bank
to the Company as its customer) and, subject to any rights of that
Account Bank in respect thereof, shall pay or otherwise deal with such
proceeds in accordance with any directions for the time being and from
time to time given in writing by the Bank.
(c) Unless for the time being and from time to time agreed by the Bank in
writing but subject to the rights of any prior mortgagee, the Company
shall pay into an account of the Company with the Bank the proceeds of
the collection or other realisation for the time being and from time to
time of the Non-Trading Debts and shall pay or otherwise deal with such
proceeds in accordance with any directions for the time being and from
time to time given in writing by the Bank.
(d) The Company shall, if called upon from time to time by the Bank
pursuant to any provision of these presents, execute a legal assignment
in favour of the Bank of any of the Trading Debts or the Non-Trading
Debts and shall, if the Bank shall for the time being and from time to
time require, give notice thereof to the debtors from whom such Trading
Debts or Non-Trading Debts are for the time being owing or incurred and
take such other steps as the Bank may from time to time require to
perfect such legal assignment.
(e) The Company shall forthwith join with the Bank in giving notice of
these presents to each bank or other financial institution specified in
Schedule 4 at or with which a Bank Account is kept or maintained, and
if the Bank shall for the time being and from time to time require, the
Company shall join with the Bank in giving notice of these presents to
all other banks or other financial institutions at or with which a Bank
Account is kept or maintained.
(16) Specifically Charged Securities
(a) The Company shall, if called upon to do so by the Bank from time to
time, execute all such transfers and other documents as may be
necessary to enable the Bank or its nominee or nominees to be
registered as the owners of, or otherwise obtain legal title to, any of
the Specifically Charged Securities.
(b) The Company shall, promptly upon receipt of any communication sent to
it in its capacity as a holder of any Specifically Charged Security,
deliver the original or a copy thereof to the Bank, and shall consult
with the Bank, prior to the exercise of all voting and other rights and
powers attached or relating to the Specifically Charged Securities and,
if the Bank shall not for the time being and from time to time have
notified the Company in writing to the
18
contrary (and whether before, during or after such consultation), shall
exercise all such rights and powers for all purposes not inconsistent
with the terms of these presents.
(c) In the event that the Bank shall for the time being and from time to
time notify the Company in writing to the following effect, the Bank
and any nominee of the Bank for the time being and from time to time
registered as the holder of the Specifically Charged Securities shall
thereafter have the immediate and sole and exclusive right to exercise
all voting and other rights and powers attaching or relating thereto
and may exercise such rights and powers in such manner as it shall in
its sole discretion think fit, and the Company shall execute and
deliver to the Bank all such proxies, mandates and other documents as
may be necessary to enable the Bank or such nominee to exercise such
rights and powers.
(d) The Bank shall not be under any liability to the Company in respect of
any failure to present any certificate of or coupon on the Specifically
Charged Securities which may be called or drawn for repayment or
redemption or for any failure to pay any call or instalment which may
be payable on, or to accept any offer relating to, the Specifically
Charged Securities or for any failure to notify the Company of any such
matters whether or not any such failure is caused or contributed to by
any negligence on the part of the Bank or any servant or agent of the
Bank.
(e) Upon the discharge of this Debenture, the Company shall, if the Bank so
requires, accept, in place of any Specifically Charged Security, a
security of the same class and denomination in the capital of, or
issued by, the same person.
(17) Uncalled capital
The Company shall, upon the written request of the Bank for the time being and
from time to time, call up any uncalled capital for the time being and from time
to time of the Company. The Company shall not call up any such uncalled capital
without the prior written consent of the Bank.
(18) Secured loan capital
The Company shall not, without the prior written consent of the Bank, issue or
re-issue any bonds, debentures, loan stocks, notes or other debt securities for
the time being and from time to time secured by any interest by way of security
for the time being and from time to time ranking in point of priority to the
security hereby constituted or any Land Charge.
(19) Intellectual Property
The Company shall make, effect and renew all such filings and registrations and
pay all such fees as for the time being and from time to time may be necessary
or advisable or as for the time being and from time to time shall be required by
the Bank to create, perfect or preserve the Intellectual Property and/or the
security hereby constituted thereover.
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(20) Information, inspection and remedy
(a) The Company shall furnish to the Bank forthwith upon the same becoming
available (and, in the case of audited accounts, in any event within 90
days of the end of each of its financial years) a copy of the audited
accounts of the Company and of each of its subsidiaries for the time
being and from time to time certified by a Chartered Accountant
approved by the Bank together with the trading accounts and the
directors' and auditors' reports thereon and each other document for
the time being and from time to time despatched to the members of the
Company and each such subsidiary and the Company shall also furnish to
the Bank within 10 days of the end of each quarter unadudited financial
statements of the Company and of each of its subsidiaries for the time
being and from time to time and the Company shall also furnish to the
Bank, as the Bank may from time to time request, such other financial
statements, information, valuations and certificates regarding the
Company and/or such subsidiaries and their respective affairs,
financial conditions, assets and liabilities.
(b) The Company shall keep, and procure that its subsidiaries for the time
being and from time to time shall keep, proper books and records at all
times.
(c) The Company shall, upon request from time to time by the Bank or its
agents, permit the Bank and/or its agents and/or their respective
advisers and employees to enter into and/or inspect the Charged Assets
and to carry out, at the Company's cost, any obligation of the Company
to the Bank under these presents which the Bank, in its absolute
discretion, considers necessary or advisable for the purpose of
preserving the value of the security hereby constituted without the
Bank or any other such person becoming liable as mortgagee in
possession and provided that the Bank shall not be obliged under these
presents to have any such inspection or obligation carried out.
(d) The Company hereby permits any Account Bank and any other bank or
financial institution with whom the Company may for the time being and
from time to time have a banker customer relationship to furnish
directly to the Bank from time to time upon request full statements and
particulars of all the Company's accounts with that Account Bank and
such other information regarding the Company, its affairs, financial
condition, assets and liabilities as may for the time being and from
time to time be available to that Account Bank or such other bank or
financial institution.
(21) Disposal of Specifically Charged Assets and other Charged Assets
The Company shall not and shall not agree to, save with the prior written
consent of the Bank or in pursuance of any other obligation under or pursuant to
these presents, sell, transfer or otherwise dispose of any of the Specifically
Charged Assets or, save in the ordinary and usual course of its trade, the whole
or any material part of its business, undertaking or any of the other Charged
Assets (other than the Specifically Charged Assets).
20
(22) Conduct of business
The Company shall carry on and conduct and procure that its subsidiaries for the
time being and from time to time shall carry on and conduct its and their
respective businesses and affairs in a proper and efficient manner and shall
not, without the prior written consent of the Bank, make any substantial
alteration in the nature of such businesses.
(23) Insolvency
(a) The Company shall give at least seven days' prior written notice to the
Bank of:-
(i) any steps for the time being and from time to time taken with
regard to a proposal for a composition or scheme of
arrangement in respect of the Company;
(ii) any invitation for the time being and from time to time made
to any other mortgagee or chargee of the Charged Assets to
appoint a receiver;
(iii) any steps for the time being and from time to time taken with
regard to the winding-up of the Company; and
(iv) any event or circumstance analogous to or having substantially
similar effect to any of the events and circumstances
described in the foregoing Sub-clauses of this Sub-clause (a)
under the laws of any applicable jurisdictions.
(b) The Company shall forthwith notify the Bank in writing of and supply
the Bank with copies of all documentation and other details relating
to:-
(i) any proposal or application described in Sub-clause (a)(i);
(ii) any demand for the time being and from time to time made for
payment or the appointment of a receiver by any other
mortgagee or chargee for the time being and from time to time
of the Charged Assets;
(iii) any petition for the time being and from time to time made for
the winding-up of the Company;
(iv) any demand for the time being and from time to time made on
the Company within the meaning of Section 95 of The Companies
Law (2002 Revision); and
(v) any event or circumstances analogous to or having
substantially similar effect to any of the events and
circumstances described in the foregoing Sub-clauses of this
Sub-clause (b) under the laws of any applicable jurisdictions.
6. EVENTS OF DEFAULT
21
(1) In respect of any Indebtedness by virtue of the Agreement to be paid or
discharged otherwise than on demand, the Bank shall nevertheless be
entitled by notice to the Company to demand the immediate payment and
discharge thereof (or any part thereof) together with all interest then
accrued thereon forthwith (or otherwise as the Bank may require) at any
time after the happening of any of the events referred to in Section
17.1 Events of Default in the Agreement which Events of Default shall
constitute Events of Default hereunder.
(2) If any of the events described in Sub-clause (1) shall occur, the Bank
shall be under no obligation to advance any monies or provide or
continue to provide any credit facility to the Company, unless the
Agreement shall expressly refer to this Sub-clause (2) and expressly
negative its effect.
(3) Upon any demand being made for payment of the Indebtedness pursuant to
Sub-clause (1), such Indebtedness shall become payable immediately and
all rights of the Company to deal for any purpose whatsoever with the
Charged Assets shall forthwith cease and any floating charge for the
time being and from time to time included in the security hereby
constituted shall forthwith crystallize and become a specific charge.
(4) Notwithstanding the Agreement, the Indebtedness shall become
immediately payable (and without the necessity for any demand to be made by the
Bank) together with all interest then accrued thereon and all rights of the
Company to deal for any purpose whatsoever with any of the Charged Assets shall
forthwith cease and any floating charge for the time being and from time to time
included in the security hereby constituted shall forthwith crystallize and
become a specific charge, on the happening of any of the following events:-
(a) if a petition shall be presented (and shall not be dismissed
within seven days) to, or an order shall be made by, any court
of competent jurisdiction for, or an effective resolution
shall be passed for, or any other steps shall be taken by the
Company or a Guarantor or any other person entitled so to do,
for the liquidation, winding-up (other than a members'
voluntary winding-up) or dissolution of the Company or a
Guarantor or the appointment of a receiver, trustee or similar
officer of the Company or a Guarantor or any of their
respective assets for the time being and from time to time;
(b) if all or a substantial part of the operations of the Company
shall cease or be suspended or the Company shall threaten that
such shall occur;
(c) if the Company, without the prior written consent of the Bank
or otherwise than in pursuance of the Company's obligations
under or pursuant to, or as expressly permitted by, these
presents, shall sell, transfer, lease or otherwise dispose of
or deal with any of the Charged Assets or purport so to do; or
22
(d) if any event or circumstances shall occur analogous to or
having substantially similar effect to any of the events and
circumstances described in Sub-clause (a) under the laws of
any applicable jurisdictions.
7. APPOINTMENT OF RECEIVER AND POWER OF SALE
(1) Time
In the circumstances described in Clause 3.2(1) (assets in jeopardy) or at any
time after the Indebtedness shall have become payable in accordance with the
Agreement or these presents or at the request of the Company, the Bank may
without further notice (and whether or not the Company shall have been accorded
sufficient or any time in which to satisfy such Indebtedness) from time to time
appoint in writing (under the hand of any manager of the Bank) a Receiver of the
Non-Realty Charged Assets (but, in the circumstances described in Clause 3.2(1),
only over the Charged Assets specified in the notice referred to in that Clause)
upon such terms as the Bank may from time to time think fit.
(2) Power of Sale and Enforcement
At any time after the Indebtedness shall have become payable in accordance with
the Agreement or these presents or the Bank shall have appointed a Receiver
(otherwise than in the circumstances described in Clause 3.2(1) (assets in
jeopardy)), the security hereby constituted shall become immediately enforceable
and the power of sale and other powers conferred by law as varied or extended by
these presents and all other powers conferred on the Bank by these presents
shall become immediately exercisable.
(3) Removal of Receiver
The Bank may remove any Receiver for the time being appointed by it from the
Charged Assets in respect of which that Receiver shall have been appointed and
may from time to time appoint a new Receiver over those Charged Assets.
(4) Receiver's Powers
Every Receiver shall be the agent of the Company (which shall be solely
responsible for his contracts, engagements, acts, defaults, omissions and
losses, for liabilities incurred by him, for his misconduct and for his
remuneration) unless and until a liquidator shall be appointed of the Company,
whereafter such Receiver shall act as principal but shall not become the agent
of the Bank, and, at all times, such Receiver shall have and be entitled to
exercise in relation to the Company all the powers conferred on receivers by law
and also (but without thereby limited those powers by law and without prejudice
to the Receiver's powers, authorities and discretions conferred
23
by these presents) such Receiver may, without further notice, exercise all or
any of the following powers:-
(a) to take immediate possession of, get in, and/or collect the
Non-Realty Charged Assets and, for that purpose, to enter upon
the Immoveable Property or any other premises at which the
Non-Realty Charged Assets are for the time being and from time
to time located and sever, dismantle or remove the same or any
fixtures for the time being and from time to time therefrom
without being liable for any loss or damage thereby
occasioned;
(b) to carry on, manage or concur in the carrying on or managing
of, the business for the time being and from time to time of
the Company in such manner as he may think fit, including (but
without limitation) power to perform, repudiate, rescind,
compromise, amend or vary any contract, instrument or
agreement to which the Company shall for the time being and
from time to time be a party;
(c) to sell, exchange or concur in the sale or exchange of the
Non-Realty Charged Assets;
(d) to grant, or concur in the grant of, any leases or licences of
the Non-Realty Charged Assets;
(e) to grant, or concur in the granting of, any renewals or
surrenders of, or to accept, or concur in the accepting of,
any surrenders of, any leases or licences for the time being
and from time to time of the Non-Realty Charged Assets;
(f) to promote, or concur in the promotion of, the formation of a
subsidiary and/or subsidiaries of the Company with a view to
the same purchasing, leasing, licensing or otherwise acquiring
all or any of the assets for the time being and from time to
time of the Company;
(g) to make and effect, and concur in the making and effecting of,
all such repairs, maintenance, decoration, provision of all
services (including, but without limitation, lighting, heating
and cleansing) structural and other alterations, improvements,
additions and development in or to the Non-Realty Charged
Assets and do anything else in connection with the Non-Realty
Charged Assets which he may think fit or which he may deem
proper for the efficient use or management of the Non-Realty
Charged Assets, as well as for the protection or for the
improvement of the Non-Realty Charged Assets or for the
protection of the security hereby constituted;
(h) to exercise or permit the Company or any nominee of the
Company to exercise any powers or rights incidental to the
ownership of the Non-Realty Charged Assets in such manner as
the Receiver may think fit and, in particular (as regards any
shares, stock or other securities for the time being and from
time to time included in the
24
Non-Realty Charged Assets) any rights for the time being and
from time to time attached thereto;
(i) to call up all or any portion of any uncalled capital for the
time being and from time to time of the Company;
(j) to redeem any interest by way of security for the time being
and from time to time ranking in point of security in priority
to any of the security hereby constituted and to settle and
prove the accounts of the holder of any such interest and any
monies paid by way of such redemption shall be an expense of
the Receiver's receivership;
(k) to settle, adjust, refer to arbitration and compromise any
claims, accounts, disputes, questions and demands for the time
being and from time to time with or by any person who for the
time being and from time to time is, or claims to be, a
creditor of the Company or relating in any way to the
Non-Realty Charged Assets;
(l) to bring, prosecute, enforce, defend and abandon any actions,
suits and proceedings in relation to the Company or the
Non-Realty Charged Assets;
(m) to appoint, hire or employ and to remunerate managers,
officers, agents, accountants, clerks, servants, workmen and
others on such terms and generally in such manner as the
Receiver shall think fit, either in connection with any
exercise by the Receiver of his powers by or pursuant to these
presents or otherwise for any purpose connected with the
Non-Realty Charged Assets, and to discharge any such person;
(n) to appoint a solicitor or accountant or other professionally
qualified person to advise or assist it in the exercise of any
of the powers, authorities and discretions by or pursuant to
these presents or otherwise for any purpose connected with the
Non-Realty Charged Assets, and to discharge any such person;
(o) for the purpose of exercising any of the powers, authorities
and discretions conferred on the Receiver by or pursuant to
these presents and/or defraying any costs, charges, losses or
expenses (including his remuneration) which shall for the time
being and from time to time be incurred by him in the exercise
thereof or for any other purpose, to make advances or to raise
or borrow money either unsecured or secured on the Non-Realty
Charged Assets ranking in point of security in priority to,
pari passu with, or subsequent to, the security hereby
constituted or otherwise and at such rate or rates of interest
and generally on such terms and conditions as the Receiver
may, in his absolute discretion, think fit;
(p) to give valid receipts for all monies and to execute all deeds
or documents (including, but without limitation, with full
power to convey any assets sold in the name of the Company) as
may be necessary or appropriate in the name of, or on
25
behalf of the Company for the purpose of exercising any of the
powers, authorities and discretions conferred on the Receiver
by or pursuant to these presents and to use the name of the
Company for all or any of such powers, authorities and
discretions, for which purpose the Company hereby irrevocably
appoints every such Receiver to be its attorney; and
(q) to do all such other acts, deeds and things as the Receiver
may consider necessary or desirable for the realisation of the
Non-Realty Charged Assets or as the Receiver may consider
incidental or conducive to any of the powers, authorities and
discretions conferred on him by or pursuant to these presents,
and to do and exercise, in relation to the Non-Realty Charged
Assets, all such acts, deeds and things and all such powers,
authorities and discretions as the Receiver would be capable
of doing and exercising if he were the absolute beneficial
owner of the Non-Realty Charged Assets.
(5) Exercise of Receiver's powers
In the exercise of any of the powers, authorities and discretions conferred on a
Receiver by or pursuant to these presents in relation to any dealing whatsoever
with the Non-Realty Charged Assets, the Receiver:-
(a) may agree such terms and conditions relating thereto and such
consideration therefor; and
(b) may dispose of the Non-Realty Charged Assets in such manner (including,
but without limitation, by public auction, tender or private treaty)
and with or without such advertisement and in such lot or lots and
together or separately;
as the Receiver shall, in his absolute discretion, think fit.
(6) Immoveable Property
The enforcement of the security constituted by a Land Charge shall be governed
by The Registered Land Law (1995 Revision) as varied and/or added to by the Land
Charge.
8. RESPONSIBILITY FOR RECEIVER
(1) Liability of Bank
The Bank shall not incur any liability, either to the Company or to any other
person whomsoever, in respect of any contracts, engagements, acts, omissions,
defaults or losses of any Receiver or for any liabilities incurred by him, for
any misconduct by him or for his remuneration, by reason of the Bank having
appointed him or of the Bank having made or given any direction, either
generally or
26
specifically, to him or having concurred in any such contract, engagement, act,
omission, default, loss or liability for any other reason whatsoever.
(2) Remuneration
The Bank may, from time to time, fix the remuneration of any Receiver and direct
payment of the same out of monies accruing to him in the exercise of his powers,
authorities and discretions by or pursuant to these presents, but the Company
alone shall be liable for the payment of that remuneration.
9. ADDITIONAL POWERS OF THE BANK
(1) As Mortgagee
The powers, authorities and discretions conferred by or pursuant to these
presents in relation to the Non-Realty Charged Assets on the Bank or any
Receiver shall be in addition to, and not in substitution for, the powers
conferred on mortgagees or receivers by law and, where there is any ambiguity or
conflict between the powers, authorities and discretions conferred by law and
those conferred by or pursuant to these presents, the terms of these presents
shall prevail.
(2) As Receiver
All or any of the powers, authorities and discretions conferred by or pursuant
to these presents, either expressly or impliedly, upon a Receiver, may be
exercised by the Bank in relation to the Non-Realty Charged Assets without the
Bank having to first appoint a Receiver and/or notwithstanding any such
appointment.
(3) Delegation of Powers of the Bank
The Bank may, for the time being and from time to time, delegate by power of
attorney or in any other manner (including but without limitation, under the
hand of any manager of the Bank) to any person all or any of the powers,
authorities and discretions which are, for the time being, exercisable by the
Bank under or pursuant to these presents or by law in relation to the Charged
Assets and any such delegation may be made upon and subject to such terms and
conditions (including, but without limitation, the power to sub-delegate) as the
Bank may, in its absolute discretion, think fit and the Bank shall not be liable
or responsible to the Company or any other person for any loss or damage arising
from any act, default, omission or misconduct on the part of any such delegate
(or sub-delegate).
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10. APPROPRIATION
Any monies received by the Bank or a Receiver under or pursuant to these
presents shall, subject to payment of any claims for the time being having
priority to these presents, be applied for the following purposes and in the
following order of priority:-
FIRST: in or towards satisfaction of all the Indebtedness described in Clause
2(2) together with interest on the same as described in Clause 2(3), in such
order as the Bank in its absolute discretion shall decide;
SECOND: in or towards satisfaction of all the Indebtedness described in Clause
2(1), together with interest on the same as described in Clause 2(3), in such
order as the Bank in its absolute discretion shall decide; and
LAST: the surplus (if any) shall be paid to the person or persons for the time
being entitled thereto.
11. LIABILITY OF THE BANK AND RECEIVER
(1) General
If the Bank or any Receiver or Delegate shall enter into possession of the
Charged Assets, the Bank or any of them may, from time to time at will, go out
of such possession.
(2) Exclusion of the Bank's liability
The Bank shall not, in any circumstances, either by reason of any entry by it
into, or taking by it of possession of, the Charged Assets or for any other
reason whatsoever and whether as mortgagee in possession or on any other basis
whatsoever, be liable to account to the Company for anything except the Bank's
own actual receipts or be liable to the Company or any other person for any loss
or damage arising from any realisation by the Bank of the Charged Assets or from
any act, default or omission of the Bank in relation to the Charged Assets or
from any exercise or non-exercise by the Bank of any power, authority or
discretion conferred upon it by or pursuant to these presents, any Land Charge
or by law.
(3) Exclusion of Receiver's liability
All the provisions of Sub-clause (2) shall apply in respect of the liability of
any Receiver or Delegate in all respects as though every reference in that
Sub-clause to the Bank were also a reference to such Receiver or, as the case
may be, such Delegate.
28
(4) Indemnity
The Bank and every Receiver and Delegate shall be entitled to be indemnified out
of the Non-Realty Charged Assets in respect of all liabilities and expenses for
the time being and from time to time incurred by any of them in the execution or
purported execution of any of the powers, authorities and discretions conferred
on them by or pursuant to these presents or by law and against all actions,
proceedings, costs, claims and demands in respect of any matter or thing done or
omitted in any way relating to the Charged Assets and the Bank and every
Receiver may retain and pay all sums in respect of the same out of any monies
received under such powers, authorities and discretions.
12. POWER OF ATTORNEY
(1) Appointment
The Company hereby, by way of security, irrevocably appoints the Bank and every
Receiver and Delegate severally to be its attorney and on its behalf and in its
name or otherwise to execute and do all such acts, deeds and things which the
Company ought to do under these presents and generally, on its behalf and in its
name, to exercise all or any of the powers, authorities and discretions
conferred by or pursuant to these presents or by law on the Bank or any Receiver
or Delegate.
(2) Ratification
The Company hereby ratifies and confirms and agrees to ratify and confirm
whatever any attorney of the Company appointed by these presents shall do or
purport to do in the exercise or purported exercise of all or any of the powers,
authorities and discretions granted to such attorney by these presents.
13. FURTHER ASSURANCE
The Company shall from time to time execute and do all such acts, deeds and
things as the Bank may reasonably require for perfecting or better perfecting or
protecting or better protecting the security hereby constituted or constituted
by any Land Charge and, after the Indebtedness shall have become payable, for
facilitating the realisation of the Charged Assets and for exercising all
powers, authorities and discretions conferred by or pursuant to these presents,
any Land Charges or by law on the Bank or any Receiver or Delegate or any
receiver under a Land Charge and shall, in particular (but without limitation)
execute and deliver all interests by way of security, transfers, conveyances,
assignments and assurances and give all notices and other communications which
the Bank shall for the time being, think expedient.
29
14. PROTECTION FOR THIRD PARTY PURCHASERS
(1) No purchaser, mortgagee or other person dealing with the Bank or any
Receiver or Delegate shall be concerned to enquire whether the
Indebtedness shall have become payable or whether any power, authority
or discretion which the Bank or a Receiver or Delegate is purporting to
exercise shall have become exercisable or shall be being properly
exercised or to see to the application of any monies paid to the Bank
or a Receiver or Delegate.
(2) Without prejudice to Sub-clause (1) and in addition to all other
protection for the time being afforded by law, any purchaser, mortgagee
or other person dealing with the Bank or any Receiver or Delegate shall
be entitled and bound to assume without enquiry that the security
hereby constituted shall have become enforceable.
15. CONTINUING SECURITY AND AVOIDANCE OF PAYMENTS
(1) The Security hereby constituted shall be a continuing security and
shall not be satisfied or discharged by any intermediate payment or
satisfaction of the Indebtedness.
(2) No assurance, security or payment which may be avoided under any
enactment relating to bankruptcy or insolvency or under The Fraudulent
Dispositions Law, (1996 Revision) (or similar legislation binding on
the Company in a jurisdiction other than The Cayman Islands), and no
release, settlement or discharge given or made by the Bank on the faith
of any such assurance, security or payment, shall prejudice or affect
the right of such persons to enforce the security hereby constituted or
any Land Charge.
16. ADDITIONAL SECURITY, SUSPENSE ACCOUNT AND CONSOLIDATION
(1) The security hereby constituted shall be in addition to, and shall not
prejudice, or be prejudiced by, any other interest by way of security,
right or remedy which the Bank may for the time being and from time to
time enjoy in respect of the Indebtedness.
(2) The Bank may, in its absolute discretion, grant time or other
indulgence or make or grant any other arrangement, variation or release
to or with any person (and whether or not such person is jointly and/or
severally liable to the Bank with the Company) in respect of the
Indebtedness or in respect of any other interest by way of security or
guarantee therefor, without prejudice either to the security hereby
constituted or to the liability of the Company for the Indebtedness.
(3) Any monies received under or pursuant to these presents may be placed
and kept to the credit of one or more than one suspense accounts with
the Bank for so long as the Bank may think fit and, notwithstanding the
other provisions of these presents, without any obligation in the
meantime to apply the same or any part thereof or interest accruing
thereon in or
30
towards discharge of any of the Indebtedness and, notwithstanding any
such payment, in the event of any liquidation or winding-up of the
Company, the Bank may prove for and agree to accept any dividend or
composition in respect of the whole or any part of the Indebtedness as
if this Debenture had not been executed and delivered.
(4) The Bank shall have the right (but not the obligation) exercisable in
its sole and absolute discretion to consolidate this Debenture with any
collateral, additional or supplemental interests by way of security
hereto notwithstanding any provision of any law to the contrary.
17. NEW ACCOUNT
If the Bank receives notice (whether actual or otherwise) of any interest by way
of security (other than the security hereby constituted) affecting the Charged
Assets, the Bank may forthwith open a new account or accounts for the Company
and, if the Bank does not open a new account, the Bank shall nevertheless be
treated as if it had done so at the time of receipt of such notice and, as from
that time, all monies paid by the Company to the Bank or received by the Bank
for the account of the Company shall be credited and be treated as having been
credited to such new account and shall not operate to reduce the amount due to
the Bank by the Company at the time of receipt of such notice and, furthermore,
the Bank shall be under no obligation to advance any monies or provide or
continue to provide any credit facility to the Company.
18. SET-OFF
Until this Debenture shall be discharged and notwithstanding any provision of
the Agreement to the contrary (unless the Agreement shall expressly refer to,
and shall negative the effect of, this Clause 18, and in addition to and without
prejudice to Clause 3.1(3) and the interests by way of security constituted
thereby,) it is and shall be a term of each contract relating to each debt
constituted by a credit balance for the time being and from time to time on any
account(s) for the time being and from time to time opened with the Bank at any
of its branches in the name of the Company or to which the Company is
beneficially entitled, together with interest for the time being and from time
to time accrued thereon (all such debts and interest being referred to in this
Clause 18 as the "Balances") or any part thereof shall not be payable or
repayable by the Bank to the Company to the extent that the aggregate amount of
the Balances at any time shall not exceed the Indebtedness, and the Bank may
(but shall not be obliged to) for the time being and from time to time, without
notice to the Company and in addition to any lien or other right to which the
Bank may for the time being be and from time to time entitled by law:-
(1) retain the Balances or any part thereof to the extent of the
Indebtedness;
(2) set off, transfer and/or apply the Balances or any part
thereof, together with other sums (if any) for the time being
and from time to time owing to the Company and in
31
the hands of the Bank, in or towards payment or satisfaction
of the Indebtedness and, if the Bank shall so decide, to
purchase out of the Balances such other currencies at the
Bank's usual spot rate for the time being as may be necessary
to effect such set-off, transfer or application;
(3) combine or consolidate all or any of the accounts of the
Company with the Bank at any of the branches of the Bank;
and/or;
(4) refuse payment of any cheque, ▇▇▇▇, note, order or notice of
withdrawal drawn or made by the Company or upon which the Bank
may be otherwise liable and which if paid or complied with
would reduce the Balances (exclusive of interest accruing) to
less than the amount of the Indebtedness;
and the Bank shall not be liable for any loss to the Company by reason of the
exercise of its rights under this Clause 18 including, but without limitation,
any loss of interest on the Balances.
19. AMALGAMATION OF BANK
These presents shall remain enforceable, valid and binding for all purposes
notwithstanding any change in the name of the Bank or its absorption of, or by,
or its amalgamation or consolidation with, any other person or any change in its
constitution or that its successors or assigns or the person by which the
business of the Bank may, for the time being and from time to time, be carried
on and shall be available to all such successors, assigns and persons.
20. NOTICES
Any notice, demand or other communication by the Bank shall be in writing signed
by any manager of the Bank and may be served by delivering the same to the
Company or by post addressed to the Company at the Company's address last known
to the Bank or to the registered office for the time being and from time to time
of the Company and any such notice, demand or other communication so addressed
and posted shall be deemed to have been served at the expiration of forty-eight
hours after it has been posted and shall be effective notwithstanding that it be
returned as being undelivered.
21. RIGHTS AND REMEDIES
The rights of the Bank under these presents are cumulative, may be exercised as
often as considered appropriate and are in addition to the general law and the
terms and conditions of the Agreement.
32
Such rights (whether arising hereunder or under the general law or the
Agreement) shall not be capable of being waived or varied otherwise than by an
express waiver or variation in writing and, in particular, any failure to
exercise or delay in exercising any of such rights shall not operate as a waiver
or variation of that or any other such right, any defective or partial exercise
of any such rights shall not preclude any other or further exercise of that or
any other such right, and no act or course of conduct or negotiation by the Bank
or on its behalf shall in any way preclude it from exercising any such right or
constitute a suspension or any variation of any such right. In the event that
there is a conflict between the terms and conditions of the Agreement and the
provisions of this Debenture, the terms and conditions of the Agreement shall
prevail, other than in respect of clause 6 (4) hereof.
22. SEVERANCE
If at any time any one or more provisions of this Debenture is or becomes
invalid, illegal or unenforceable in any respect under any applicable law, the
validity, legality and enforceability of the remaining provisions hereof shall
not in any way be affected or impaired thereby.
23. GOVERNING LAW
These presents shall be governed by, and construed in accordance with, the laws
of the Cayman Islands.
24. JURISDICTION
The Company hereby irrevocably agrees that the courts of the Cayman Islands are
to have jurisdiction to settle any disputes which arise out of or in connection
with this Debenture and that, accordingly, any suit, action or other legal
proceedings so arising may be brought in such courts. The Company hereby
irrevocably waives any objection which it may now or hereafter have to the
laying of the venue of any such legal proceedings in such courts and any claim
that any such legal proceedings have been brought in an inconvenient forum, and
further hereby irrevocably agrees that a judgment in any such legal proceedings
brought in such courts shall be conclusive and binding upon it and may be
enforced in the Courts of any other jurisdiction without re-examination of the
merits.
Nothing contained in this provision shall limit the right of the Bank to take
any such legal proceedings in any other court of competent jurisdiction; nor
shall the taking of any legal proceedings in one jurisdiction preclude the
taking of legal proceedings in another, whether concurrently or not. The Company
hereby agrees that the process by which any such legal proceedings are begun in
the Cayman Islands may be served on it by being delivered to the person (if any)
specified in Schedule 5.
33
25. FURTHER ADVANCES
Each and every obligation (if any) for the time being and from time to time of
the Bank to make further advances to the Company under and in accordance with
the terms of the Agreement shall be deemed to be included in this Debenture as
if the same were set out herein in full.
26. STAMPING
This Debenture shall at the Company's expense be impressed with stamp duty
initially to cover U.S.$ 22,000,000.00 of the Indebtedness and the Bank shall be
at liberty and is hereby empowered at any time or times hereafter (without any
such licence or consent on the part of the Company) to impress such additional
stamp duty hereon or on any collateral, supplemental or additional interests by
way of security to this Debenture all at the Company's own cost and expense as
is necessary to cover the Indebtedness.
IN WITNESS whereof this document has been executed as a deed and delivered the
day and year first above written.
SCHEDULE 1
Description of the Immoveable Property
charged under Clause 3.1(1)(a)
▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ Parcels 8 and ▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ 9A Parcels 8 and ▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ 12D Parcel 79 REM 1/2
34
SCHEDULE 2
Description and location of the Specifically
Charged Plant
1. Governor's Harbour Seawater Desalination Plant - WBBN
Block 11D Parcels 8 and 40
A seawater desalination plant constructed within a steel building ,
utilizing reverse osmosis technology, capable of producing 1.2 million
US gallons of potable water per day, whose primary components are :-
- two positive displacement pumps with a pumping capacity of 410 US
gallons per minute each;
- two " back up " centrifugal pumps with a pumping capacity of 300 US
gallons per minute each;
- 77 vessels (measuring approximately 265 inches in length and 8 inches
in diameter) each housing six spiral wound seawater membranes
(measuring approximately 40 inches in length and 8 inches in diameter);
- a DWEER work exchanger energy recovery system;
- an air scrubber to remove the hydrogen sulphide from the product water,
which is capable of scrubbing approximately 800 US gallons of water per
minute;
- Paragon TNT v5.0 cintrol software on Gateway hardware with I/O System
Opto 22 and Optomux interface controller to control the operations of
the plant.
2. West Bay Seawater Desalination Plant-WBNE Block 9A
Parcels 8 and 469
A seawater desalination plant constructed within a steel building,
utilizing reverse osmosis technology, capable of producing 710,000 US
gallons of potable water per day, whose primary components are:-
- two positive displacement pumps with a pumping capacity of 386 US
gallons per minute each;
35
- 43 vessels (measuring approximately 280 inches in length and 8 inches
in diameter) each housing seven spiral wound seawater membranes
(measuring approximately 40 inches in length and 8 inches in diameter);
- one hydraulic turbo energy recovery system;
- one DWEER work exchanger energy recovery system;
- an air scrubber to remove the hydrogen sulphide from the product water,
which is capable of scrubbing 1000 US gallons of water per minute; and
- an ▇▇▇▇▇ ▇▇▇▇▇▇▇ SLC500 Programmable Logic Controller (PLC) linked to
a Compaq PC computer running Windows NT 4.0 and Wintelligent View
interfaced with the PLC to control the operation of the plant.
3. Britannia Seawater Desalination Plant - WBBS Block
12D Parcel 79REM1/2
A seawater desalination plant constructed within a steel building
utilizing reverse osmosis technology, capable of producing 440,000
US gallons of potable water per day, whose primary components
are:-
- four skid- mounted seawater RO plants with desalinated water production
capacities of 110,000 US gallons per day each , and utilizing electric
powered high pressure pumps and calder energy recovery devices;
- one potable water ozonation system used to neutralize hydrogen sulphide
and disinfect the product water;
- one 840,000 US gallon bolted steel tank used to store potable water;
* one high service pump station used to pump water from the bolted steel
tank to the distribution pipeline
SCHEDULE 3
Description of certain Specifically Charged Securities
charged under Clause 3.1(3)(f)
36
SCHEDULE 4
Description of Bank Accounts charged under Clause 3.1(3)(p)
SCHEDULE 5
Name and address of person (if any) to accept service
of process on behalf of the Company
The Common Seal of ) Consolidated Water Co. Ltd.
Consolidated Water Co. Ltd. ] )
was hereunto affixed ) By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
By: ) --------------------------
And by: ) And By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
in the presence of: ) --------------------------
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------
Witness
Scotiabank (Cayman Islands) Ltd.
Signed as a Deed by ) By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
by ) --------------------------
By: ) And By: /s/
On behalf of Scotiabank (Cayman ) --------------------------
Islands) Ltd.
In the presence of )
[ILLEGIBLE]
------------------------
Witness Scotiabank/Consolidated/Sub. ▇▇▇.
DATED 2003
CONSOLIDATED WATER CO. LTD.
AS COMPANY
- AND -
SCOTIABANK (CAYMAN ISLANDS ) LTD.
AS BANK
DEED OF SUBSTITUTED DEBENTURE
(i)
INDEX
CLAUSES
1. DEFINITIONS AND INTERPRETATION
2. MONIES SECURED
(1) Monies
(2) Costs
(3) Interest
3. THE CHARGES
3.1 Charging provision
Immoveable Property
Specifically Charged Plant
Trading Debts
Non-Trading Debts
Specifically Charged Securities
Goodwill and uncalled capital
Intellectual Property
Ancillary assets
Bank Accounts
Other assets
3.2 Crystallisation of floating charge
3.3 Negative pledge
3.4 Land Charges
(ii)
4. REPRESENTATIONS & WARRANTIES
5. COVENANTS
(1) Documents of title to Immoveable Property and Specifically
Charged Plant and Securities
(2) Further charges
(3) Future Immoveable Property and Specifically Charged Plant and
Securities
(4) Maintenance
(5) Insurance
(6) Registration under The Registered Land Law
(7) Notices affecting Immoveable Property or Specifically Charged
Plant
(8) Planning Legislation
(9) Other compliance with law
(10) Compliance with contracts
(11) Leases or licences of Immoveable Property and Intellectual
Property: as lessee or Licensee
(12) Leases of licences of Immoveable Property and Intellectual
Property; as lessor or licensor
(13) Removal and severance
(14) Specifically Charged Plant
(iii)
(15) Debts and Bank Accounts
(16) Specifically Charged Securities
(17) Uncalled capital
(18) Secured loan capital
(19) Intellectual Property
(20) Information, inspection and remedy
(21) Disposal of Specifically Charged Assets and other Charged
Assets
(22) Conduct of business
(23) Insolvency
6. EVENTS OF DEFAULT
7. APPOINTMENT OF RECEIVER AND POWER OF SALE
(1) Time
(2) Power of Sale and Enforcement
(3) Removal of Receiver
(4) Receiver's Powers
(5) Exercise of Receiver's Powers
(6) Immoveable Property
8. RESPONSIBILITY FOR RECEIVER
(1) Liability of Bank
(2) Remuneration
(iv)
9. ADDITIONAL POWERS OF THE BANK
(1) As Mortgagee
(2) As Receiver
(3) Delegation of powers of the Bank
10. APPROPRIATION
11. LIABILITY OF THE BANK AND RECEIVER
(1) General
(2) Exclusion of the Bank's liability
(3) Exclusion of Receiver's liability
(4) Indemnity
12. POWER OF ATTORNEY
(1) Appointment
(2) Ratification
13. FURTHER ASSURANCE
14. PROTECTION FOR THIRD PARTY PURCHASERS
15. CONTINUING SECURITY AND AVOIDANCE OF PAYMENTS
16. ADDITIONAL SECURITY, SUSPENSE ACCOUNT AND CONSOLIDATION
17. NEW ACCOUNT
(v)
18. SET-OFF
19. AMALGAMATION OF BANK
20. NOTICES
21. RIGHTS AND REMEDIES
22. SEVERANCE
23. GOVERNING LAW
24. JURISDICTION
25. FURTHER ADVANCES
26. STAMPING
SCHEDULE 1 Description of the Immovable
Property charged under Clause
3.1(1)(a)
SCHEDULE 2 Description and location
of Specifically Charged Plant
SCHEDULE 3 Description of certain
Specifically Charged Securities
charged under Clause 3.1(3)(f)
SCHEDULE 4 Description of the Bank Accounts charged under Clause 3.1(3)(p)
(vi)
SCHEDULE 5 Name and address of person (if
any) to accept service of process
on behalf of Company