Deed of Second Collateral Debenture between Cayman Water Co. Ltd. and Dextra Bank & Trust Co. Ltd. dated August 4, 2006
This agreement is between Cayman Water Company Limited and Dextra Bank & Trust Co. Ltd., acting as trustee for bondholders. It secures repayment of a debt of over $15 million owed by Consolidated Water Co. Ltd. to the trustee. The agreement grants the trustee a fixed and floating charge over all assets of Cayman Water Company Limited, ranking equally with a prior debenture. It outlines the parties’ rights, obligations, and remedies in case of default, and details the assets covered, events of default, and procedures for enforcement.
PO Box 709GT, Zephyr House, Mary Street
Grand Cayman, Cayman Islands
British West Indies
Tel: 345 ###-###-####
Fax: 345 ###-###-####
Email: ***@***
(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 | ||
(15) | Debts and Trustee Accounts |
(ii)
(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 |
(1) | Time | ||
(2) | Power of Sale and Enforcement | ||
(3) | Removal of Receiver | ||
(4) | Receivers Powers | ||
(5) | Immoveable Property |
(1) | Liability of Trustee | ||
(2) | Remuneration |
(1) | As Mortgagee | ||
(2) | As Receiver | ||
(3) | Delegation of Powers of the Trustee |
(iii)
(1) | General | ||
(2) | Exclusion of the Trustees Liability | ||
(3) | Exclusion of Receivers liability | ||
(4) | Indemnity |
(1) | Appointment | ||
(2) | Ratification |
(iv)
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 Trustee 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 Company |
(v)
(1) | CAYMAN WATER CO. LTD. incorporated under the laws of the Cayman Islands of P.O. Box 1114 GT, Grand Cayman (the Company, which expression shall include its successors and assigns); and |
(2) | DEXTRA BANK & TRUST CO. LTD. (the Trustee), which expression shall include its successors, transferees and assigns); |
A The Company is a wholly owned subsidiary of Consolidated Water Co. Ltd. (CWCO). CWCO and Scotiabank & Trust (Cayman) Ltd. (the Bank) entered into certain loan facilities dated February 7, 2003 and to secure the repayment of those facilties CWCO granted to the Bank a debenture over all of its assets. Subsequent to that date CWCO requested the Banks consent to transfer certain of its assets to the Company. |
B The Bank granted its consent to the transfer of assets to the Company on the condition that the Company and the Bank enter into a Collateral Deed of Debenture which was executed whereby the Company granted to the Bank a fixed and floating charge over all of the assets of the Company (the First Debenture). |
C Pursuant to the Trust Deed CWCO has issued bonds and received consideration therefor from the Trustee on behalf of the Bondholders. |
D CWCO is indebted to the Trustee as trustee for the Bondholders in the sum of US$15,771,997.16 (the Indebtedness). CWCO has granted to the Trustee a debenture to secure repayment of the Indebtedness. |
E To further secure the Indebtedness and all other obligations of CWCO under the Trust Deed the Company hereby grants to the Trustee this Second Debenture which, by agreement between the Trustee and the Bank, shall rank in all respects pari passu with the First Debenture. |
1.1 | In this Deed of Second Debenture, unless the contrary shall be expressed or the context shall otherwise require:- |
2
(a) | such security granted by the Company as is in existence as of the date hereof in favour of the Bank; | |
(b) | such as arises or is imposed by operation or implication of law and is not intended to arise for that purpose; | |
(c) | any agreement or arrangement for the retention of title to goods which is not entered into for the purpose of raising finance; | |
(d) | 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 | |
(e) | the security hereby constituted. |
3
(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:- |
4
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. |
(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 to the Trustee by CWCO pursuant to the Agreement 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 Trustee or by or through any Receiver or by or through any attorney, delegate, sub-delegate, substitute, agent or employee of the Trustee or a Receiver, for any purposes described in these presents or a Land Charge or in about the exercise of any power, authority or discretion conferred on the Trustee 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 Trustee 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). |
5
(a) | all (if any) of the immovable 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); |
(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 anytime 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); |
(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); |
(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 Companys subsidiaries for the time being and from time to time; |
6
(f) | all stocks, shares, bonds, debentures, loan stocks, notes, warrants and other securities now or hereafter belonging to the Company (other than in any of its subsidiaries), | ||
(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 Trustee 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; |
(i) | all the goodwill and uncalled capital of the Company, both present and future; |
(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 property of the Company, acquired or developed up to the date of the bond execution; | ||
(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); |
(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; |
7
(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; |
(a) | the undertaking and all the other assets of the Company (other than the assets described in Clause 3.1(1) to 3.1(3) hereof (the Specifically Charged Assets) and any Intellectual Property or interest in it acquired by the Company after the date of bond execution), 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. |
(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 the 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; |
(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):- |
8
(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; | ||
(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 any obligation or representation or a warranty described in Sub-clause (m) or insurance or 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; |
(e) | the full benefit for the time being and from time to time of, and the Companys 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; | ||
(f) | the full benefit for the time being and from time to time of, and all the Companys 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 being and from time to time on such accounts, together with all interest for the time being and from time to time accrued thereon. |
(1) | as regards any assets subject thereto as may from time to time be specified in a notice from the Trustee to the Company if the Trustee 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; |
9
(2) | as regards any assets subject thereto which shall become subject to specific charges in favour of any person other than the Trustee or subject to 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). |
(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 authorize the granting of interests by way of security upon the terms and conditions of this Debenture and each Land Charge and to authorize 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 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; |
10
(b) | the constitutional documents or resolution 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 Trustee 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 Trustee in accordance with Clause 3.3. and has not agreed so to do. |
(5) | In connection with any consent given by the Trustee in accordance with Clause 3.3 on or prior to the date hereof, the Company did furnish to the Trustee true, complete and up to date written details of the existing interest(s) by way of security to which such consent relates. |
(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 immovable 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. |
(1) | Documents of title to Immoveable Property and Specifically Charged Plant Securities |
and the Trustee 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 Immovable 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, deed and documents of title for the time being and from time to time relating to the Specifically Charged Securities.
11
(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 worked out or destroyed; and |
(b) | Keep the Specifically Charged Plant in 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. |
(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, storm, tempest, flood, burst pips, hurricane, windstorm, riot and impact and such other risks and the Trustee may, for the time being 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 |
12
clearance and shoring up or in such other amount as the Trustee may in writing from time to time approve, with such reputable insurers and generally in such manner as the Trustee shall from time to time approve in writing. The Company shall cause notice of the interest of the Trustee 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 Trustee in writing, be delivered to and retained by the Trustee. The Company shall duly pay the premiums on such insurance and, immediately after every such payment, produce the receipt for the same to the Trustee. All monies which may at any time hereafter be received or receivable under any insurance of 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 the prior mortgagee) in such other manner as the Trustee 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 business 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 |
13
(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 Trustee in respect of any breach of any covenants, agreements or stipulations for the time being and from time to time affecting the Immoveable Property. |
(a) | Unless otherwise agreed from time to time in writing by the Trustee, 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 |
14
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 to 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 Trustee, grant or agree to grant any lease or licence of, or other right or interest to occupy, the Immoveable Property or the Intellectual Property. |
15
a Trustee Account is kept or maintained.
(a) | The Company shall, if called upon to do so by the Trustee from time to time, execute all such transfers and other documents as may be necessary to enable the Trustee 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 communications sent to it in its capacity as a holder of any Specifically Charged Security, deliver the original or a copy thereof to the Trustee, and shall consult with the Trustee, prior to the exercise of all voting and other rights and powers attached or relating to the Specifically |
16
Charged Securities and, if the Trustee shall not for the time 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 Trustee shall for time being and from time to time notify the Company in writing to the following effect, the Trustee and any nominee of the Trustee for the time being and from time to time registered as the holder of the Specifically Charged Security 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 Trustee or such nominee to exercise such rights and powers. |
(d) | The Trustee 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 maybe 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 Trustee or any servant or agent of the Trustee. |
(e) | Upon the discharge of this Debenture, the Company shall, if the Trustee so requires, accept, in place of any Specifically Charged Security, a security of the same class and denomination in the capital of, issued by, the same person. |
17
(a) | The Company shall furnish to the Trustee forthwith upon the same becoming available (and, in the case of audited accounts, in any event within 120 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 Trustee 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 Trustee within 45 days of the end of each quarter unaudited 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 Trustee, as the Trustee may from time to time request, such other financial statement, 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 Trustee or its agents, permit the Trustee 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 Companys cost, any obligation of the Company to the Trustee under these presents which the Trustee, in its absolute discretion, considers necessary or advisable for the purpose of preserving the value of the security hereby constituted without the Trustee or any other such person becoming liable as mortgagee in possession and provided that the Trustee 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 Trustee and from time to time upon the request full statements and particulars of all the Companys 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. |
18
(a) | The Company shall give at least seven days prior written notice to the Trustee of:- | |
(i) | any steps for the time being and from time to time to be taken by the Company 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 to be made by the Company 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 to be taken by the Company 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 Trustee in writing of and supply the Trustee 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 under Section 95 of The Companies Law (2004 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 the Sub-clause (b) under the laws of any applicable jurisdiction. |
19
(1) | In respect of any Indebtedness by virtue of the Trust Deed to be paid or discharged otherwise than on demand, the Trustee 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 Trustee may require) at any time after the happening of an Event of Default as such term is defined in the Agreement. |
(2) | 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. |
20
(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 or from time to time of the Company; |
21
(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 to 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 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 right 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 Non-Realty Charged Assets) any rights for the time being and from time to time attached hereto; | ||
(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 Receivers 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, 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 or by or pursuant to these presents or otherwise for any purpose connected with the Non-Realty Charged Assets, and to discharge any such person. |
22
(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 to 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 behalf of he 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 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 Receivers powers |
(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 together or separately; |
23
24
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 Trustee 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 Trustee 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. |
25
26
(1) | No purchaser, mortgagee or other person dealing with the Trustee or any Receiver or Delegate shall be concerned to enquire whether the Indebtedness shall have become payable or where any power, authority or discretion which the Trustee 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 Trustee 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 Trustee or any Receiver or Delegate shall be entitled and bound to assume without enquiry that the security hereby constituted shall have become enforceable. |
(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 Trustee 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. |
27
(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 Trustee may for the time being and from time to time enjoy in respect of the Indebtedness. |
(2) | The Trustee 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 Trustee 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 subject to the Agreement be placed and kept to the credit of one or more than one suspense accounts with the Trustee for so long as the Trustee 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 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 Trustee 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 Trustee 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. |
28
29
30
Charged under Clause 3.1(1)(a)
Charged Plant
Charged under Clause 3.1(3)(f)
of process on behalf of the Company
Signed as a Deed by | ) | |||||
Cayman Water Company Limited | ) | Cayman Water Company Limited | ||||
) | ||||||
By: | ) | By: Frederick W. McTaggart | ||||
And by: | ) | |||||
In the presence of | ) | And By: Greg McTaggart | ||||
Donald Miller | ) | |||||
Witness | ) | |||||
) | ||||||
Signed as a Deed by | ) | Dextra Bank & Trust Co. Ltd. | ||||
) | ||||||
Dextra Bank & Trust Co. Ltd. | ) | |||||
By: | ) | By: Alex Wood | ||||
And by: | ) | |||||
) | And By: Alitsia Finlayson | |||||
In the presence of: | ) | |||||
Donald Miller | ||||||
Witness |
31