Attached files
| file | filename |
|---|---|
| 10-K - Consolidated Water Co. Ltd. | v177335_10k.htm |
| EX-7 - Consolidated Water Co. Ltd. | v177335_ex7.htm |
| EX-2 - Consolidated Water Co. Ltd. | v177335_ex2.htm |
| EX-5 - Consolidated Water Co. Ltd. | v177335_ex5.htm |
| EX-8 - Consolidated Water Co. Ltd. | v177335_ex8.htm |
| EX-99.6 - Consolidated Water Co. Ltd. | v177335_ex6.htm |
| EX-31.2 - Consolidated Water Co. Ltd. | v177335_ex31-2.htm |
| EX-32.2 - Consolidated Water Co. Ltd. | v177335_ex32-2.htm |
| EX-23.1 - Consolidated Water Co. Ltd. | v177335_ex23-1.htm |
| EX-31.1 - Consolidated Water Co. Ltd. | v177335_ex31-1.htm |
| EX-23.2 - Consolidated Water Co. Ltd. | v177335_ex23-2.htm |
| EX-32.1 - Consolidated Water Co. Ltd. | v177335_ex32-1.htm |
Execution
Copy
DATED
THIS 24 Aug 2007
OCEAN
CONVERSION (BVI) LTD
and
CONSOLIDATED
WATER CO. LTD.
DEBENTURE
Conyers
Dill & Pearman
Road
Town, Tortola
British
Virgin Islands
CONTENTS
|
CLAUSE
|
Page
|
|
|
1.
|
INTERPRETATION
|
1
|
|
2.
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PAYMENT
OF SECURED OBLIGATIONS
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4
|
|
3.
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CHARGING
CLAUSE
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5
|
|
4.
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CONTINUING
SECURITY
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6
|
|
5.
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FURTHER
ASSURANCE
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7
|
|
6.
|
REPRESENTATIONS
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8
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|
7.
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UNDERTAKINGS
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9
|
|
8.
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POWER
OF ATTORNEY
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10
|
|
9.
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ENFORCEMENT
AND POWERS OF THE CHARGEE
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11
|
|
10.
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APPLICATION
OF MONEYS
|
13
|
|
11.
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PROTECTION
OF THIRD PARTIES
|
14
|
|
12.
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PROTECTION
OF CHARGEE AND RECEIVER
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14
|
|
13.
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COSTS
AND EXPENSES
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15
|
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14.
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CUMULATIVE
POWERS AND AVOIDANCE OF PAYMENTS
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15
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|
15.
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RULING
OFF ACCOUNTS
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16
|
|
16.
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DELEGATION
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16
|
|
17.
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REDEMPTION
OF PRIOR CHARGES
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16
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18.
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NOTICES
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16
|
|
19.
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CHANGES
TO PARTIES
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16
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20.
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MISCELLANEOUS
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16
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21.
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PAYMENTS
FREE OF DEDUCTION
|
17
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22.
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RELEASE
OF SECURITY
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17
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23.
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GOVERNING
LAW
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17
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24.
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JURISDICTION
|
17
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SCHEDULE
1 DETAILS OF ACCOUNTS
|
18
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|
SCHEDULE
2 FORM OF NOTICE TO BANKS OPERATING ACCOUNTS AND/OR
NOMINATED ACCOUNTS
|
19
|
THIS DEBENTURE is made
on 24 Aug 2007
BETWEEN:
|
(1)
|
Ocean Conversion (BVI) Ltd.
of Baughers Bay, Tortola, British Virgin Islands a company
incorporated under the laws of the British Virgin Islands with registered
number 682861 (the “Chargor”);
and
|
|
(2)
|
Consolidated Water Co.
Ltd., of Grand Cayman, Cayman Islands, a company incorporated under
the laws of the Cayman Islands (the “Chargee”)
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WHEREAS:
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(A)
|
By
a loan agreement dated on our about 25 May 2005 and attached hereto as
Schedule 3 (the “Loan
Agreement”) made between the Chargor and Chargee, the Chargee
agreed to provide certain loan facilities to the Chargor on the terms and
conditions therein set out.
|
|
(B)
|
By
the terms of the Loan Agreement, the funds loaned were to be repaid the
1st
day of June 2007.
|
|
(C)
|
The
Chargor is currently not in a position to make such repayment, and the
Chargee has agreed to extend the time for repayment until the1st day of
July 2009 (the “Loan
Extension”) if it receives the security of this Debenture which the
Chargor has agreed to give.
|
THE PARTIES AGREE AS FOLLOWS:
|
1.
|
INTERPRETATION
|
|
1.1
|
Defined
terms used in this Debenture have the same meaning attributed to them in
the Loan Agreement and, unless the context otherwise requires, the
following words and expressions shall have the following
meanings:
|
“Act” means the Insolvency
Act, 2003 of the British Virgin Islands;
“Accounts” means the accounts
of the Chargor set out in Schedule 1 (Details of Accounts) and/or
such other accounts as the Chargor and the Chargee shall agree or (following the
occurrence of an Event of Default) as the Chargee shall specify;
“Book Debts” means all book
and other debts arising in the ordinary course of trading;
“BVI BC Act” means the BVI
Business Companies Act, 2004 of the British Virgin Islands;
“Charged Property” means the
assets mortgaged, charged or assigned to the Chargee by this
Debenture;
“CLP” means the Conveyancing
and Law of Property Ordinance 1961 (Cap. 220) of the British Virgin
Islands;
“Floating Charge Asset” means
an asset charged under Clause 3.2 (Floating
Charge);
“Insurances” means all
policies of insurance and all proceeds of them either now or in the future held
by, or written in favour of, the Chargor or in which it is otherwise
interested;
“Other Debts” means debts and
claims other than Book Debts;
1
“Receiver” means a receiver
and manager, administrator receiver or (if the Chargee so specifies in the
relevant appointment) receiver or any analogous officer appointed under the Act
in each case appointed under this Debenture;
“Secured Obligations” means
all of the present and future obligations now or hereafter existing, whether
actual or contingent and whether joint or several, of the Chargor to the
Chargee.
|
1.2
|
References
in this Debenture to any document, agreement or instrument will be deemed
to include references to that document, agreement or instrument as it may
be amended, modified, varied, novated or restated from time to time
(including, without limitation, by way of increase of the facilities made
available thereunder). Similarly, references in this Debenture
to the Secured Obligations will be deemed to include any and all
obligations which the Chargor or may have under or in connection with the
Loan Agreement and Loan Extension as the same may be so varied, amended,
modified, novated or restated from time to
time.
|
|
1.3
|
In
this Debenture, unless a contrary intention appears, a reference
to:
|
|
|
(a)
|
an
“agreement”
includes any legally binding arrangement, concession, contract, deed or
franchise (in each case whether oral or
written);
|
|
|
(b)
|
an
“amendment”
includes any amendment, supplement, variation, novation, modification,
replacement or restatement and “amend”, “amending” and “amended” shall be
construed accordingly;
|
|
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(c)
|
“assets” includes
property, business, undertaking and rights of every kind, present, future
and contingent (including uncalled share capital) and every kind of
interest in an asset;
|
|
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(d)
|
a
“consent” includes
an authorisation, approval, exemption, licence, order, permission or
waiver;
|
|
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(e)
|
“including” means
including without limitation and “includes” and “included” shall be
construed accordingly;
|
|
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(f)
|
“losses” includes
losses, actions, damages, claims, proceedings, costs, demands, expenses
(including fees) and liabilities and “loss” shall be
construed accordingly;
|
|
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(g)
|
a
“month” means a
period starting on one day in a calendar month and ending on the day
before the numerically corresponding day in the next calendar month,
except that:
|
|
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(i)
|
if
any such period would otherwise end on a day which is not a Business Day,
it shall end on the next Business Day in the same calendar month or, if
none, on the preceding Business Day;
and
|
|
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(ii)
|
if
there is no numerically corresponding day in the month in which that
period ends, that period shall end on the last Business Day in that later
month,
|
and
references to “months”
shall be construed accordingly;
|
|
(h)
|
a
“person” includes
any person, individual, firm, company, corporation, government, state or
agency of a state or any undertaking or other association (whether or not
having separate legal personality) or any two or more of the foregoing;
and
|
2
|
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(i)
|
a
“regulation”
includes any regulation, rule, official directive, request or guideline
(whether or not having the force of law) of any governmental body, agency,
department or regulatory, self-regulatory or other authority or
organisation.
|
|
1.4
|
The
terms of the documents under which the Secured Obligations arise and of
any side letters between the Chargor and the Chargee relating to the
Secured Obligations are incorporated in this Debenture to the extent
required for any purported disposition of the Charged Property contained
in this Debenture to be a valid
disposition;
|
|
1.5
|
The
parties intend that this document shall take effect as a
deed;
|
|
1.6
|
The
following covenants shall be implied into any disposition made in this
Debenture with “full
title guarantee”;
|
|
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(a)
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that
the person making the disposition has the right (with the concurrence of
any other person conveying the property) to dispose of the property as he
purports to;
|
|
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(b)
|
that
the person making the disposition will, at his own cost, do all that he
reasonably can do to give the person to whom he disposes the property the
title he purports to give, which obligation
includes:
|
|
(i)
|
in
relation to a disposition of an interest in land the title to which is
registered, doing all that he reasonably can to ensure that the person to
whom the disposition is made is entitled to be registered as proprietor
with at least the class of title registered immediately before the
disposition; and
|
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(ii)
|
in
relation to a disposition of an interest in land the title to which is
required to be registered by virtue of the disposition, giving all
reasonable assistance fully to establish to the satisfaction of the
relevant land registry authorities the right of the person to whom the
disposition is made to registration as
proprietor;
|
|
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(c)
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that
the person making the disposition is making it free
from:
|
|
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(i)
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all
charges and encumbrances (including all liabilities imposed and rights
conferred by or under any enactment);
and
|
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(ii)
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all
other rights exercisable by third
parties;
|
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(d)
|
in
connection with any dispositions of leasehold property, that the lease is
subsisting at the time of the disposition and that there is no subsisting
breach of a condition or tenant’s obligation and nothing which, at that
time, would render the lease liable to forfeiture;
and
|
|
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(e)
|
in
connection with any disposition which is a mortgage of property subject to
a rentcharge, or of leasehold land,
that:
|
|
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(i)
|
(in
the case of a rentcharge) the mortgagor or chargor will fully and promptly
observe and perform all the obligations under the instrument creating the
rentcharge that are for the time being enforceable with respect to the
property by the owner of the rentcharge in his capacity as such;
and
|
3
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(ii)
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(in
the case of a leasehold) the mortgagor or chargor will fully and promptly
observe and perform all the obligations under the lease subject to the
mortgage that are for the time being imposed on him in his capacity as
tenant under the lease.
|
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1.7
|
All
defined terms in the Loan Agreement shall have the same meaning when used
in this Debenture.
|
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1.8
|
If
there is a conflict between this Debenture and the Loan Agreement then (to
the extent permitted by law) the provisions of the Loan Agreement shall
take priority over the provisions of this Debenture except in relation to
the Due Date;
|
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1.9
|
In
this Debenture, unless a contrary intention
appears:
|
|
|
(a)
|
references
to statutory provisions shall be construed as references to those
provisions as amended or re-enacted or as their application is modified by
other provisions from time to time and shall include references to any
provisions of which they are re-enactments (whether with or without
modification);
|
|
|
(b)
|
references
to clauses and schedules are references to clauses hereof and schedules
hereto; references to sub-clauses or paragraphs are, unless otherwise
stated, references to sub-clauses of the clause or paragraphs of the
schedule in which the reference
appears;
|
|
|
(c)
|
references
to the singular shall include the plural and vice versa and
references to the masculine shall include the feminine and/or neuter and
vice
versa;
|
|
|
(d)
|
references
to persons shall include companies, partnerships, associations and bodies
of persons, whether incorporated or unincorporated;
and
|
|
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(e)
|
references
to assets include property, rights and assets of every
description.
|
|
2.
|
PAYMENT OF SECURED
OBLIGATIONS
|
|
2.1
|
Extension and Amendment of Loan
Agreement
|
|
|
(a)
|
Clause
1 of the Loan Agreement is amended to reflect that in sub-clause (6), the
definition of Due Date is now the 31st
day of August 2009.
|
|
|
(b)
|
The
Loan Agreement is further amended to reflect that the Subordinated
Indebtedness must be repaid as
follows:
|
Eight (8)
quarterly principal payments of $125,000.00 commencing on 31 August 2007, plus a
final principal payment of US$2,000,000.00 due on 31 August, 2009, plus
quarterly payments of accrued interest and any other amounts due.
|
|
(c)
|
In
the event that the Chargor fails to execute water supply contracts with
the Government of the British Virgin Islands with regard to the Baughers
Bay and Bar bay plants on or before 15 September 2007, same will
constitute a material adverse change to the Chargor’s financial condition
and the entire amount of the Subordinated Indebtedness will become
immediately repayable pursuant to Clause 3(15) of the Loan
Agreement.
|
4
In all
other respects the Loan Agreement is confirmed.
|
2.2
|
Covenant To Comply
|
The
Chargor, as primary obligor, hereby covenants with the Chargee that it shall
comply with and discharge all the Secured Obligations as and when required by
the Loan Agreement and this Debenture (as to which time is of the
essence).
|
2.3
|
Interest on
Demands
|
If the
Chargor fails to pay any sum on the due date for payment of that sum the Chargor
shall pay interest on any such sum in accordance with the relevant provisions of
the Agreement
|
3.
|
CHARGING
CLAUSE
|
|
3.1
|
Fixed
Charges
|
The
Chargor hereby charges, with full title guarantee, in favour of the Chargee as
security for the payment and discharge of the Secured Obligations all of its
right, title and interest from time to time in and to each of the following
asset by way of first fixed charge:
|
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(i)
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all its real
and leasehold property;
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(ii)
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all its fixed
assets;
and
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(iii)
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its
goodwill and uncalled capital.
|
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3.2
|
Floating
Charge
|
As
further security for the payment, performance or discharge of the Secured
Obligations, the Chargor hereby charges with full title guarantee in favour of
the Chargee for the payment and discharge of the Secured Obligations by way of
first floating charge all present and future assets and undertakings of the
Chargor not effectively charged by way of first fixed charge under Clause 3.1 (Fixed Charges).
|
3.3
|
Conversion of Floating
Charge
|
The
Chargee may, at any time by notice in writing to the Chargor, convert the
floating charge created by Clause 3.2 (Floating Charge) with
immediate effect into a fixed charge as regards any property or assets specified
in the notice if:
|
|
(a)
|
An
Event of Default has occurred;
|
|
|
(b)
|
the
Chargee considers that any of the Charged Property may be in jeopardy or
in danger of being seized or sold pursuant to any form of legal process;
or
|
|
|
(c)
|
the
Chargee, acting reasonably, considers that it is necessary in order to
protect the priority of the
security.
|
|
3.4
|
Automatic Conversion of
Floating Charge
|
Notwithstanding
Clause 3.3 (Conversion of a
Floating Charge) and without prejudice to any law which may have a
similar effect, the floating charge will automatically be converted (without
notice) with immediate effect into a fixed charge as regards all the assets
subject to the floating charge if:
5
|
|
(a)
|
the
Chargor creates or attempts to create any Security over any of the Charged
Property;
|
|
|
(b)
|
any
person levies or attempts to levy any distress, execution or other process
against any of the Charged Property which is subject to the floating
charge created pursuant to Clause 3.2 (Floating
Charge);
|
|
|
(c)
|
the
Chargor becomes insolvent within the meaning set out in section 8 (Meaning of
“Insolvency”) of the Act; or
|
|
|
(d)
|
a
resolution is passed or an order is made for the winding-up, dissolution,
administration or re-organisation of the Chargor or an administrator or
administrative receiver is appointed to the
Chargor.
|
|
3.5
|
Reconversion of a Floating
Charge
|
A
floating charge which has been converted into a fixed charge pursuant to Clause
3.4 (Automatic Conversion of
Floating Charge) may be reconverted to into a floating charge by notice
given by the Chargee to the Chargor in relation to the assets specified in such
notice.
|
4.
|
CONTINUING
SECURITY
|
|
4.1
|
Continuing
Security
|
The
security created by or pursuant to this Debenture shall remain in full force and
effect as a continuing security for the payment, performance and discharge of
the Secured Obligations unless and until discharged by the Chargee,
notwithstanding any intermediate payment, performance, discharge or settlement
of all or any part of the Secured Obligations or any other matter or
thing.
|
4.2
|
Other
Security
|
The
security created by or pursuant to this Debenture shall be cumulative, in
addition to and independent of every other security which the Chargee may at any
time hold for the payment, performance or discharge of the Secured Obligations
or any other obligations or any rights, powers and remedies provided by
law. No prior security held by the Chargee over the whole or any part
of the Charged Property shall merge into the security constituted by this
Debenture.
|
4.3
|
Immediate
Recourse
|
The
Chargee may enforce the security created by or pursuant to this Debenture
without first having recourse to any other rights of the Chargee.
|
4.4
|
Chargor’s
Obligations
|
The
Chargor’s obligations shall not be discharged, impaired or otherwise affected
by:
|
|
(a)
|
any
winding-up, dissolution, administration or re-organisation of or other
change in the Chargor or any other
person;
|
|
|
(b)
|
any
of the Secured Obligations being at any time illegal, invalid,
unenforceable or ineffective;
|
6
|
|
(c)
|
any
time or other indulgence being granted to the Chargor or any other
person;
|
|
|
(d)
|
any
amendment, variation, waiver or release of any of the Secured
Obligations;
|
|
|
(e)
|
any
failure to take or failure to realise the value of any other collateral in
respect of the Secured Obligations or any release, discharge, exchange or
substitution of any such collateral;
or
|
|
|
(f)
|
any
other act, event or omission which but for this provision would or might
operate to impair, discharge or otherwise affect the obligations of the
Chargor under this Debenture.
|
|
4.5
|
No
Prejudice
|
The
security created by or pursuant to this Debenture shall not be prejudiced by any
unenforceability or invalidity of any other agreement or document or by any time
or indulgence granted to the Chargor or any other person, or the Chargee or by
any variation of the terms of the trust upon which the Chargee holds the
security or by any other thing which might otherwise prejudice that
security.
|
4.6
|
Remedies and
Waivers
|
No
failure on the part of the Chargee to exercise, or any delay on its part in
exercising, any rights it may have under a Loan Agreement or Loan Extension
shall operate as a waiver of such right, nor shall any single or partial
exercise of any such right preclude any further or other exercise of that or any
other such right.
|
4.7
|
No
Liability
|
None of
the Chargee, its nominee(s) or any Receiver shall be liable by reason
of:
|
|
(a)
|
taking
any action permitted by this
Debenture;
|
|
|
(b)
|
any
neglect or default in connection with the Charged Property;
or
|
|
|
(c)
|
taking
possession of or realising all or any part of the Charged
Property,
|
except in
the case of gross negligence or wilful default upon its part.
|
4.8
|
Partial
Invalidity
|
If, at
any time, any provision of this Debenture is or becomes illegal, invalid or
unenforceable in any respect under the law of any jurisdiction, neither the
legality, validity or enforceability of the remaining provisions of this
Debenture nor of such provision under the laws of any other jurisdiction shall
in any way be affected or impaired thereby and, if any part of the security
intended to be created by or pursuant to this Debenture is invalid,
unenforceable or ineffective for any reason, that shall not affect or impair any
other part of the security.
|
5.
|
FURTHER
ASSURANCE
|
|
(a)
|
The
Chargor will, at its own expense, promptly following request by the
Chargee, execute such deeds and other agreements, deliver such title
documents and otherwise take whatever action the Chargee reasonably may
require:
|
7
|
|
(i)
|
to
perfect and/or protect the security created (or intended to be created) by
this Debenture (including registration of the security created under this
Debenture with the Registrar of Corporate Affairs pursuant to Section 162
of the BVI BC Act);
|
|
|
(ii)
|
to
facilitate the realisation or enforcement of such
security;
|
|
|
(iii)
|
to
facilitate the exercise of any of the Chargee’s rights, powers or
discretions under this Debenture;
and/or
|
|
|
(iv)
|
to
confer on the Chargee security over any assets of the Chargor (in whatever
jurisdiction situated) equivalent or similar to the security intended to
be conferred by this Debenture,
|
including
the conversion of charges to assignments, equitable security to legal security,
the execution of any transfer, conveyance, assignment or assurance whatsoever
and the giving of all notices, orders, instructions and directions
whatsoever.
|
(b)
|
Any
security document required to be executed by the Chargor under this Clause
5 will contain clauses corresponding to and
no more onerous than the provisions set out in this
Debenture.
|
|
(c)
|
The
Chargor undertakes that it will
not:
|
|
|
(i)
|
do
or cause or permit to be done anything which will, or could be reasonably
expected to, materially adversely affect the security or the rights of the
Chargee hereunder or which in any way which is inconsistent with or
materially depreciates, jeopardises or otherwise prejudices the security;
or
|
|
|
(ii)
|
create
or permit to subsist any Security over any of its assets from time to time
other than as permitted by the Loan Agreement or Loan
Extension.
|
|
6.
|
REPRESENTATIONS
|
The Chargor hereby represents and
warrants to the Chargee that:
|
|
(a)
|
the
Chargor is a company duly organised, validly existing and in good standing
under the laws of the British Virgin
Islands;
|
|
|
(b)
|
the
Chargor is the legal and beneficial owner of all of the Charged Property
free from any Security (other than that created by this
Debenture or as permitted under the Finance Documents) and any options or
rights of pre-emption;
|
|
|
(c)
|
the
Chargor has full power and authority (i) to be the legal and beneficial
owner of the Charged Property, (ii) to execute and deliver this Debenture
and (iii) to comply with the provisions of, and perform all its
obligations under, this Debenture;
|
|
|
(d)
|
this
Charge constitutes the Chargor's legal, valid and binding obligations
enforceable against the Chargor in accordance with its terms except as
such enforcement may be limited by any relevant bankruptcy, insolvency,
administration or similar laws affecting creditors' rights
generally;
|
|
|
(e)
|
the
entry into and performance by the Chargor of this Debenture does not
violate (i) any law or regulation of any governmental or official
authority, or (ii) any agreement, contract or other undertaking to which
the Chargor is a party or which is binding upon the Chargor or any of its
assets;
|
8
|
|
(f)
|
all
consents, licences, approvals and authorisations required in connection
with the entry into, performance, validity and enforceability of this
Debenture have been obtained and are in full force and effect;
and
|
|
|
(g)
|
the
Chargor has taken all corporate and other action required to approve its
execution, delivery and performance of this
Debenture.
|
|
7.
|
UNDERTAKINGS
|
|
7.1
|
Duration of
Undertakings
|
The
Chargor undertakes to the Chargee in the terms of this Clause 7 from the date of this Debenture and for so long as
any security constituted by this Debenture remains in force.
|
7.2
|
General
Undertakings
|
(a) Charged Property
It will
observe and perform all covenants and stipulations from time to time affecting
the Charged Property, make all payments, carry out all registrations or renewals
and generally take all steps which are necessary to preserve, maintain and renew
when necessary or desirable all the Charged Property.
(b) Maintenance
It will
keep all plant, machinery, fixtures, fittings, vehicles, computers and other
equipment comprised in the Charged Property in good and substantial repair (fair
wear and tear excepted) and in good working order (as applicable).
|
7.3
|
Collection of Book Debts and
Other Debts
|
|
(a)
|
After
an Event of Default has occurred, the Chargor will, as agent for the
Chargee, collect all Book Debts and Other Debts charged to the Chargee
under this Debenture, pay the proceeds into an Account (or, in the case of
Other Debts, such account (a “Nominated Account”) as
the Chargee may nominate) forthwith on receipt and, pending that payment,
hold those proceeds on trust for the
Chargee.
|
|
(b)
|
The
Chargor shall not charge, factor, discount or assign any of the Book Debts
or Other Debts in favour of any other person, or purport to do so unless
permitted by the Facility
Agreement.
|
|
7.4
|
Accounts
|
|
(a)
|
It
will as soon as reasonably practicable pay all monies received by it into
an Account held in its name and charged pursuant to this
Debenture.
|
|
(b)
|
It
will not, without the prior consent of the Chargee, open or maintain an
account with any bank, financial institution or other person other than an
Account.
|
|
(c)
|
The
Chargor will procure that the bank with which any Account or Nominated
Account is maintained signs and delivers to the Chargee a letter
substantially in the form set out in Schedule 2 (Form of notice to banks
operating Accounts and/or Nominated
Accounts).
|
9
|
(d)
|
Once
an Event of Default has occurred the Chargor may not withdraw any monies
from time to time standing to the credit of any Account or Nominated
Account, unless expressly permitted to do so under the Facility Agreement
or with the prior consent of the
Chargee.
|
|
7.5
|
Retention of
Documents
|
The
Chargee may retain any document delivered to it under Clause
5(a) (Title
Documents) or otherwise until the security created by this Debenture is
released and, if for any reason it ceases to hold any such document before that
time, it may by notice to the Chargor require that the relevant document be
redelivered to it and the Chargor shall promptly comply (or procure compliance)
with that notice.
|
7.6
|
Power to
Remedy
|
If a
Chargor fails to comply with any covenant set out in Clauses 7.1 (Duration of Undertakings) to
Clause 7.5 (Retention of
Documents) (inclusive) and that failure is not remedied to the
satisfaction of the Chargee (acting reasonably) within 10 Business Days, it will
allow (and irrevocably authorises) the Chargee or any person which the Chargee
nominates to take any action on behalf of that Chargor which is necessary to
ensure that those covenants are complied with.
|
8.
|
POWER OF
ATTORNEY
|
|
8.1
|
Appointment and
Powers
|
|
(a)
|
The
Chargor, by way of security, irrevocably appoints the Chargee, any
Receiver and any person nominated for the purpose by the Chargee or any
Receiver severally to be its attorney and in its name, on its behalf and
as its act and deed to execute, deliver and perfect all documents and do
all things which the attorney may consider to be required or desirable
for:
|
|
|
(i)
|
carrying
out any obligation imposed on the Chargor by this Debenture (including the
execution and delivery of any deeds, charges, assignments or other
security and any transfers of the Charged Property) with which the Chargor
has failed to comply; and
|
|
|
(ii)
|
enabling
the Chargee, any Receiver and any person nominated for the purpose by the
Chargee or any Receiver to exercise, or delegate the exercise of, any of
the rights, powers and authorities conferred on them by or pursuant to
this Debenture or by law (including, after the occurrence of an Event of
Default, the exercise of any right of a legal or beneficial owner of the
Charged Property).
|
|
(b)
|
The
Chargee, any Receiver and any person nominated for the purpose by the
Chargee or any Receiver shall only use the power of attorney conferred on
it pursuant to paragraph (a), above,
upon:
|
|
|
(i)
|
an
Event of Default; or
|
|
|
(ii)
|
if
the Chargor has failed to comply with a further assurance or perfection
obligation within 10 Business Days of being notified of that failure and
being requested to comply.
|
|
8.2
|
Ratification
|
The
Chargor shall ratify and confirm all things done and all documents executed by
any attorney in the exercise or purported exercise of all or any of his
powers.
10
|
9.
|
ENFORCEMENT AND POWERS OF THE
CHARGEE
|
|
9.1
|
Statutory
Restrictions
|
The
restriction on the consolidation of mortgages and on power of sale imposed by
section 35 of the CLP shall not apply to the security constituted by
this Debenture.
|
9.2
|
Enforcement
Powers
|
For the
purpose of all rights and powers implied or granted by statute, the Secured
Obligations are deemed to have fallen due on the date of this
Debenture. The power of sale and other powers conferred by sections
38 and 39 of the CLP and all other enforcement powers conferred by this
Debenture shall be immediately exercisable at any time after an Event of Default
has occurred or notice demanding payment of any sum which is then due but unpaid
in respect of the Secured Obligations have been given by the Chargee to the
Chargor.
|
9.3
|
Statutory
Powers
|
The
powers conferred on mortgagees or receivers by the Act and the CLP shall apply
to the security created by this Debenture unless they are expressly or impliedly
excluded. If there is ambiguity or conflict between the powers
contained in the Act and/or the CLP and those contained in this Debenture, those
contained in this Debenture shall prevail.
|
9.4
|
Appointment of Receiver or
Administrator
|
|
(a)
|
At
any time after an Event of Default has occurred, or if so requested by the
Chargor, the Chargee may by writing under hand signed by any officer or
manager of the Chargee, appoint any person (or persons) to be a Receiver
of all or any part of the Charged
Property;
|
|
(b)
|
For
the avoidance of doubt, a Receiver appointed under Clause 9.4(a) may be an
administrative receiver in accordance with section 142(1)(a) of the
Act.
|
|
9.5
|
Exercise of
Powers
|
All or
any of the powers conferred upon mortgagees by the Act and the CLP as varied or
extended by this Debenture, and all or any of the rights and powers conferred by
this Debenture on a Receiver (whether expressly or impliedly), may be exercised
by the Chargee upon 5 days notice to the Chargor at any time after a Declared
Default has occurred, irrespective of whether the Chargee has taken possession
or appointed a Receiver of the Charged Property
|
9.6
|
Receiver as
Agent
|
Each
Receiver shall be the agent of the Chargor which shall be solely responsible for
his acts or defaults, and for his remuneration and expenses, and be liable on
any agreements or engagements made or entered into by him. The
Chargee will not be responsible for any misconduct, negligence or default of a
Receiver.
11
|
9.7
|
Powers of
Receiver
|
Each
Receiver appointed under this Debenture shall have all the powers conferred from
time to time on receivers by the Act and the CLP (which is deemed incorporated
in this Debenture). In addition, notwithstanding any liquidation of
the Chargor each Receiver shall have power to:
|
|
(a)
|
develop,
reconstruct, amalgamate or diversify any part of the business of the
Chargor;
|
|
|
(b)
|
enter
into or cancel any contracts on any terms or
conditions;
|
|
|
(c)
|
incur
any liability on any terms, whether secured or unsecured, and whether to
rank for payment in priority to this security or
not;
|
|
|
(d)
|
let
or lease or concur in letting or leasing, and vary the terms of,
determine, surrender leases or tenancies of, or grant options and licences
over, or otherwise deal with, all or any of the Charged Property, without
being responsible for loss or
damage;
|
|
|
(e)
|
establish
subsidiaries to acquire interests in any of the Charged Property and/or
arrange for those subsidiaries to trade or cease to trade and acquire any
of the Charged Property on any terms and
conditions;
|
|
|
(f)
|
make
and effect all repairs, renewals and improvements to any of the Charged
Property and maintain, renew, take out or increase
insurances;
|
|
|
(g)
|
exercise
all voting and other rights attaching to the investments and stocks,
shares and other securities owned by the Chargor and comprised in the
Charged Property;
|
|
|
(h)
|
redeem
any prior Security on or relating to the Charged Property and settle and
pass the accounts of the person entitled to such prior Security, so that
any accounts so settled and passed shall (subject to any manifest error)
be conclusive and binding on the Chargor and the money so paid shall be
deemed to be an expense properly incurred by the
Receiver;
|
|
|
(i)
|
appoint
and discharge officers and others for any of the purposes of this
Debenture and/or to guard or protect the Charged Property upon terms as to
remuneration or otherwise as he may think
fit;
|
|
|
(j)
|
settle
any claims, accounts, disputes, questions and demands with or by any
person who is or claims to be a creditor of the Chargor or relating to any
of the Charged Property;
|
|
|
(k)
|
implement
or continue the development of (and obtain all consents required in
connection therewith) and/or complete any buildings or structures on any
real property comprised in the Charged
Property;
|
|
|
(l)
|
purchase
or acquire any land or any interest in or right over
land;
|
|
|
(m)
|
exercise
on behalf of the Chargor all the powers conferred on a landlord or a
tenant by any legislation from time to time in force in any relevant
jurisdiction relating to rents or agriculture in respect of any part of
the real property comprised in the Charged Property;
and
|
12
|
|
(n)
|
do
all other acts and things (including signing and executing all documents
and deeds) as the Receiver considers to be incidental or conducive to any
of the matters or powers in this Clause 9.7,
or otherwise incidental or conducive to the preservation, improvement or
realisation of the Charged Property, and use the name of the Chargor for
all such purposes,
|
and in
each case may use the name of the Chargor and exercise the relevant power in any
manner which he may think fit.
|
9.8
|
Removal of
Receiver
|
The
Chargee may by notice remove from time to time any Receiver appointed by it and,
whenever it may deem appropriate, appoint a new Receiver in the place of any
Receiver whose appointment has terminated, for whatever reason.
|
9.9
|
Remuneration of
Receiver
|
The
Chargee may from time to time fix the remuneration of any Receiver appointed by
it.
|
9.10
|
Several
Receivers
|
If at any
time there is more than one Receiver, each Receiver may separately exercise all
of the powers conferred by this Debenture (unless the document appointing such
Receiver states otherwise).
|
10.
|
APPLICATION OF
MONEY
|
|
10.1
|
Insurance
Proceeds
|
If an
Event of Default has occurred, all moneys received by virtue of any insurance
maintained or effected in respect of the Charged Property shall be paid to the
Chargee (or, if not paid by the insurers directly to the Chargee, shall be held
on trust for the Chargee) and shall, at the option of the Chargee, be applied in
replacing or reinstating the assets destroyed, damaged or lost (any deficiency
being made good by the Chargor or (except in the case of leasehold premises) in
reduction or discharge of the Secured Obligations.
|
10.2
|
Suspense
Account
|
Until the
Secured Obligations are irrevocably paid, performed or discharged in full, the
Chargee may place and keep (for such time as it shall determine) any money
received pursuant to this Debenture or on account of any Chargor’s liability in
respect of the Secured Obligations in an interest bearing separate suspense
account (to the credit of either the relevant Chargor or the Chargee as the
Chargee shall think fit) and the Receiver may retain the same for the period
which he and the Chargee consider expedient without having any obligation to
apply all or any part of that money in or towards payment, performance or
discharge of the Secured Obligations.
|
10.3
|
Application of
Monies
|
All
moneys received by the Chargee pursuant to this Debenture shall be held by it
upon trust in the first place to pay or make good all such expenses,
liabilities, losses, costs, duties, fees, charges or other moneys whatsoever as
may have been paid or incurred by the Chargee in exercising any of the powers
specified or otherwise referred to in this Debenture and the balance shall be
applied in accordance with the provisions of clause 27.5 (Partial payments) of the
Facility Agreement.
13
|
11.
|
PROTECTION OF THIRD
PARTIES
|
|
11.1
|
No Obligation to
Enquire
|
No
purchaser from, or other person dealing with, the Chargee or any Receiver (or
their agents) shall be obliged or concerned to enquire whether:
|
|
(a)
|
the
right of the Chargee or any Receiver to exercise any of the powers
conferred by this Debenture has arisen or become exercisable or as to the
propriety or validity of the exercise or purported exercise of any such
power; or
|
|
|
(b)
|
any
of the Secured Obligations remain outstanding or be concerned with notice
to the contrary and the title and position of such a purchaser or other
person shall not be impeachable by reference to any of those
matters.
|
|
11.2
|
Receipt
Conclusive
|
The
receipt of the Chargee or any Receiver shall be an absolute and a conclusive
discharge to a purchaser, and shall relieve him of any obligation to see to the
application of any moneys paid to or by the direction of the Chargee or any
Receiver.
|
12.
|
PROTECTION OF CHARGEE AND
RECEIVER
|
|
12.1
|
No
Liability
|
Neither
the Chargee nor any Receiver shall be liable in respect of any of the Charged
Property or for any loss or damage which arises out of the exercise or the
attempted or purported exercise of, or the failure to exercise any of, their
respective powers, unless caused by its or his gross negligence, wilful default
or breach of any obligations under the Finance Documents.
|
12.2
|
Possession of Charged
Property
|
Without
prejudice to Clause 12.1 (No
Liability), if the Chargee or the Receiver enters into possession of the
Charged Property, it will not be liable to account as mortgagee in possession
and may at any time at its discretion go out of such possession.
|
12.3
|
Liability of
Chargor
|
The
Chargor shall be deemed to be a principal debtor and the sole, original and
independent obligor for the Secured Obligations and the Charged Property shall
be deemed to be a principal security for the Secured Obligations. The
liability of the Chargor under this Debenture and the charges contained in this
Debenture shall not be impaired by any forbearance, neglect, indulgence,
extension of time, release, surrender or loss of securities, dealing, variation
or arrangement by the Chargee, or by any other act, event or matter whatsoever
whereby the liability of the Chargor (as a surety only) or the charges contained
in this Debenture (as secondary or collateral charges only) would, but for this
provision, have been discharged.
14
|
13.
|
COSTS AND
EXPENSES
|
|
13.1
|
Expenses
|
The
Chargor will on demand pay to each of the Chargee and any Receiver the amount of
all costs and expenses (including legal fees and other out-of-pocket expenses
and any value added tax or other similar tax thereon) reasonably incurred by any
of them in connection with any amendment, consent or suspension of rights (or
proposal for any of the same) relating to this Debenture (and documents, matters
or things referred to in this Debenture).
|
13.2
|
Enforcement
Expenses
|
The
Chargor will on demand pay to each of the Chargee, and any Receiver the amount
of all reasonable costs and expenses (including legal fees and other out of
pocket expenses and any value added tax or other similar tax thereon) reasonably
incurred by any of them in connection with the preservation, enforcement or
attempted preservation or enforcement of any of their rights under this
Debenture (and any documents referred to in this Debenture) or any of the
Charged Property.
|
13.3
|
Stamp Duties,
etc
|
The
Chargor will on demand indemnify each of the Chargee, and any Receiver appointed
under this Debenture, from and against any liability for any stamp, documentary,
filing and other duties and Taxes (if any) which are or may become payable in
connection with this Debenture.
|
14.
|
CUMULATIVE POWERS AND AVOIDANCE
OF PAYMENTS
|
|
14.1
|
Cumulative
Powers
|
The
powers which this Debenture confers on the Chargee, and any Receiver appointed
under this Debenture are cumulative, without prejudice to their respective
powers under the general law, and may be exercised as often as the relevant
person thinks appropriate. The Chargee, or the Receiver may, in
connection with the exercise of their powers, join or concur with any person in
any transaction, scheme or arrangement whatsoever. The respective
powers of the Chargee, and the Receiver will in no circumstances be suspended,
waived or otherwise prejudiced by anything other than an express consent or
amendment.
|
14.2
|
Amounts
Avoided
|
If any
amount paid by the Chargor in respect of the Secured Obligations is capable of
being avoided or set aside on the liquidation or administration of the Chargor
or otherwise, then for the purposes of this Debenture that amount shall not be
considered to have been paid. No interest shall accrue on any such
amount, unless and until such amount is so avoided or set aside.
|
14.3
|
Discharge
Conditional
|
Any
settlement or discharge between the Chargor and any the Chargee shall be
conditional upon no security or payment to by the Chargor or any other person
being avoided, set aside, ordered to be refunded or reduced by virtue of any
provision or enactment relating to insolvency and accordingly (but without
limiting the other rights of the Chargee under this Debenture) shall
be entitled to recover from the Chargor the value which that the Chargee has
placed on that security or the amount of any such payment as if that settlement
or discharge had not occurred.
15
|
15.
|
RULING OFF
ACCOUNTS
|
If the
Chargee or any other Secured Party receives notice of any subsequent Security or
other interest affecting any of the Charged Property (except as permitted by the
Loan Agreements) it may open a new account for the Chargor in its
books. If it does not do so then (unless it gives express notice to
the contrary to the Chargor), as from the time it receives that notice, all
payments made by the Chargor to it (in the absence of any express appropriation
to the contrary) shall be treated as having been credited to a new account of
the Chargor and not as having been applied in reduction or discharge of the
Secured Obligations.
|
16.
|
DELEGATION
|
The
Chargee may delegate by power of attorney or in any other manner all or any of
the powers, authorities and discretions which are for the time being exercisable
by it under this Debenture to any person or persons upon such terms and
conditions (including the power to sub-delegate) as it may think
fit. The Chargee will not be liable or responsible to the Chargor or
any other person for any losses arising from any act, default, omission or
misconduct on the part of any delegate.
|
17.
|
REDEMPTION OF PRIOR
CHARGES
|
The
Chargee may, at any time after an Event of Default has occurred, redeem any
prior Security on or relating to any of the Charged Property or procure the
transfer of that Security to itself, and may settle and pass the accounts of any
person entitled to that prior Security. Any account so settled and
passed shall (subject to any manifest error) be conclusive and binding on the
Chargor. The Chargor will on demand pay to the Chargee all principal
monies and interest and all losses incidental to any such redemption or
transfer.
|
18.
|
NOTICES
|
Any
notice, demand, consent, agreement or other communication to be served in
connection with this Debenture shall be given in accordance with Section 29
(Notices) of the
Facility Agreement.
|
19.
|
CHANGES TO PARTIES
|
|
19.1
|
Assignment by the
Chargee
|
The
Chargee may at any time assign or otherwise transfer all or any part of its
rights under this Debenture in accordance with the provisions of Section 22
(Changes to Lenders) of
the Facility Agreement.
|
19.2
|
Changes to
Parties
|
The
Chargor authorises and agrees to changes to parties under the Finance Documents
and authorises the Chargee to execute on its behalf any document required to
effect the necessary transfer of rights or obligations contemplated by those
provisions.
|
20.
|
MISCELLANEOUS
|
|
20.1
|
Certificates
Conclusive
|
A
certificate or determination of the Chargee as to any amount payable under this
Debenture will be conclusive and binding the Chargor except in the case of
manifest error.
16
|
20.2
|
Counterparts
|
This
Debenture may be executed in any number of counterparts, all of which taken
together shall be deemed to constitute one and the same instrument.
|
20.3
|
Perpetuity
Period
|
The
perpetuity period under the rule against perpetuities, if applicable to this
Debenture, shall be the period of eighty years from the date of this
Debenture.
|
21.
|
PAYMENTS FREE OF
DEDUCTION
|
All
payments to be made to the Chargee under this Debenture shall be made in
accordance with Section 2(3) (Payments)) of the Loan Agreement.
|
22.
|
RELEASE OF
SECURITY
|
|
22.1
|
Redemption of
Security
|
Upon the
Secured Obligations being irrevocably paid, performed or discharged in full and
none of the Chargee being under no further actual or contingent obligation to
make advances or provide other financial accommodation to the Chargor or any
other person under any of the Loan Agreement or Loan Extension, the Chargee
shall, at the request and cost of the Chargor, release and cancel the security
constituted by this Debenture and procure the reassignment to the Chargor of the
property and assets assigned to the Chargee pursuant to this Debenture, in each
case subject to Clause 22.2 (Avoidance of Payments) and
without recourse to, or any representation or warranty by, the Chargee or any of
its nominees.
|
22.2
|
Avoidance of
Payments
|
If the
Chargee considers that any amount paid or credited to it is capable of being
avoided or reduced by virtue of any bankruptcy, insolvency, liquidation or
similar laws the liability of the Chargor under this Debenture and the security
constituted hereby shall continue and such amount shall not be considered to
have been irrevocably paid.
|
23.
|
GOVERNING
LAW
|
This
Debenture is governed by the laws of the British Virgin Islands.
|
24.
|
JURISDICTION
|
|
24.1
|
British Virgin Islands
Courts
|
The
courts of the British Virgin Islands have exclusive jurisdiction to settle any
dispute (a “Dispute”)
arising out of, or connected with this Debenture (including a dispute regarding
the existence, validity or termination of this Debenture or the consequences of
its nullity).
|
24.2
|
Convenient
Forum
|
The
parties agree that the courts of the British Virgin Islands are the most
appropriate and convenient courts to settle disputes between them and,
accordingly, that they will not argue to the contrary.
|
24.3
|
Exclusive
Jurisdiction
|
This
Clause 24 (Jurisdiction) is for the
benefit of the Chargee only. As a result and notwithstanding Clause
24.1 (British Virgin Islands
Courts), it does not prevent the Chargee from taking proceedings relating
to a Dispute in any other courts with jurisdiction. To the extent
allowed by law the Chargee may take concurrent proceedings in any number of
jurisdictions.
THIS DEBENTURE has been signed
on behalf of the Chargee and executed as a deed by the Chargor and is delivered
on the date specified above.
17
SCHEDULE
1
DETAILS
OF ACCOUNTS
|
Account
Bank
|
SWIFT
Code
|
Account
Number
|
||
|
Scotiabank
(British Virgin Islands) Limited
|
NOSCVGVG
|
3151
17
|
18
SCHEDULE
2
FORM
OF NOTICE TO BANKS
OPERATING
ACCOUNTS AND/OR
NOMINATED
ACCOUNTS
19
SIGNATORIES
TO DEBENTURE
THE
CHARGOR
|
Executed and delivered as a
Deed on behalf of
|
|
|
OCEAN
CONVERSION (BVI) LTD.
|
|
|
By
its authorised signatories:
|
|
| /s/ Frederick W. McTaggart | |
|
Name:
|
|
|
Title: Director
|
|
| /s/ Glenn Harrigan | |
|
Name:
|
|
|
Title: Director
|
|
|
THE CHARGEE
|
|
|
CONSOLIDATED
WATER CO. LTD.
|
|
|
By
its authorised signatories:
|
|
| /s/ Frederick W. McTaggart | |
|
Name:
|
|
|
Title: Director
|
|
| /s/ J. M. Parker | |
|
Name:
|
|
|
Title: Director
|
|
20