<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 22, 2000
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM F-2
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
CONSOLIDATED WATER CO. LTD.
(Exact name of Registrant as specified in charter)
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<S> <C>
CAYMAN ISLANDS, B.W.I. NONE
(State or other jurisdiction (I.R.S. Employer Identification
of No.)
incorporation or registration)
</TABLE>
TRAFALGAR PLACE, WEST BAY ROAD
P.O. BOX 1114GT
GRAND CAYMAN, CAYMAN ISLANDS, B.W.I.
(345) 945-4277
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
JEFFREY M. PARKER, CHAIRMAN AND CHIEF EXECUTIVE OFFICER
CONSOLIDATED WATER CO. LTD.
TRAFALGAR PLACE, WEST BAY ROAD,
P.O. BOX 1114GT
GRAND CAYMAN, CAYMAN ISLANDS, B.W.I.
(345) 945-4277
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
------------------------
Copies to:
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<S> <C>
LESLIE J. CROLAND, P.A. JUSTIN P. KLEIN, ESQ.
STEEL HECTOR & DAVIS LLP BALLARD SPAHR ANDREWS & INGERSOLL, LLP
200 SOUTH BISCAYNE BOULEVARD, 40TH FLOOR 1735 MARKET STREET, 51ST FLOOR
MIAMI, FL 33131-2398 PHILADELPHIA, PA 19103
(305) 577-7000 (215) 864-8606
</TABLE>
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
reasonably practicable after the effective date of this Registration Statement.
If the only securities being registered on this Form are to be offered
pursuant to dividend or interest reinvestment plans, check the following box [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering [X] 333-35356
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box [ ]
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<PAGE> 2
This Post-Effective Amendment No. 1 is being filed to include certain
exhibits that were not filed with Consolidated Water Co. Ltd.'s Registration
Statement which was declared effective by the Securities and Exchange Commission
on May 18, 2000.
<PAGE> 3
ITEM 16. EXHIBITS.
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<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
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*1. Form of Underwriting Agreement among Consolidated Water Co.
Ltd. and the underwriters.
3.1 Amended and Restated Memorandum of Association of
Consolidated Water Co. Ltd., dated December 4, 1998
(incorporated by reference to the exhibit filed as part of
our Form 20-F for the fiscal year ended December 31, 1998,
Commission File No. 0-25248).
3.2 Amended and Restated Articles of Association of Consolidated
Water Co. Ltd., dated December 4, 1998 (incorporated by
reference to the exhibit filed as part of our Form 20-F for
the fiscal year ended December 31, 1998, Commission File No.
0-25248).
*5.1 Opinion and Consent of Myers & Alberga.
10.1 License Agreement, dated July 11, 1990, between Cayman Water
Company Limited and the Government of the Cayman Islands
(incorporated herein by reference to the exhibit filed as a
part of our Form 20-F dated December 7, 1994, Commission
File No. 0-25248).
10.2 First Amendment to License Agreement, dated September 18,
1990, between Cayman Water Company Limited and the
Government of the Cayman Islands. (incorporated herein by
reference to the exhibit filed as a part of our Form 20-F
dated December 7, 1994, Commission File
No. 0-25248).
10.3 Second Amendment to License Agreement, dated February 14,
1991, between Cayman Water Company Limited and the
Government of the Cayman Islands. (incorporated herein by
reference to the exhibit filed as a part of our Form 20-F
dated December 7, 1994, Commission File
No. 0-25248).
10.4 License Agreement, dated October 26, 1992, between Cayman
Island Government-Portfolio of Communications, Works and
Agriculture and Cayman Water Company Limited for the supply
of non-potable water to SafeHaven Ltd. (incorporated herein
by reference to the exhibit filed as a part of our Form 20-F
dated December 7, 1994, Commission File No. 0-25248).
10.5 Amendment to License Agreement, dated November 12, 1992,
between Cayman Island Government -- Portfolio of
Communications, Works and Agriculture and Cayman Water
Company Limited for the supply of non-potable water to
SafeHaven Ltd. (incorporated herein by reference to the
exhibit filed as a part of our Form 20-F dated December 7,
1994, Commission File
No. 0-25248).
10.6 Service Agreement, dated October 27, 1992, between Cayman
Water Company Limited and SafeHaven Ltd. (incorporated
herein by reference to the exhibit filed as a part of our
Form 20-F dated December 7, 1994, Commission File No.
0-25248).
10.7 Amendment to Service Agreement, dated November 25, 1992,
between Cayman Water Company Limited and SafeHaven Ltd.
(incorporated herein by reference to the exhibit filed as a
part of our Form 20-F dated December 7, 1994, Commission
File No. 0-25248).
10.8 Amendment to Service Agreement, dated September 4, 1995,
between Cayman Water Company Limited and SafeHaven Ltd.
(incorporated herein by reference to the exhibit filed as a
part of our Registration Statement on Form F-1 dated March
26, 1996, Commission File No. 333-00038).
10.9 Water Purchase Agreement #2, dated October 14, 1994, between
Cayman Water Company Limited and Ocean Conversion (Cayman)
Limited. (incorporated herein by reference to the exhibit
filed as a part of our Form 20-F dated December 7, 1994,
Commission File No. 0-25248).
10.10 Water Purchase Agreement #3, dated October 21, 1994, between
Cayman Water Company Limited and Ocean Conversion (Cayman)
Limited. (incorporated herein by reference to the exhibit
filed as a part of our Form 20-F dated December 7, 1994,
Commission File No. 0-25248).
*10.11 Employment Contract, dated August 19, 1997, between Cayman
Water Company Limited and Peter D. Ribbins.
</TABLE>
II-1
<PAGE> 4
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
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*10.12 Amendment and Rectification of Engagement Agreement, dated
October 26, 1999, between Consolidated Water Co. Ltd. and
Peter D. Ribbins.
*10.13 Second Amendment of Engagement Agreement, dated March 21,
2000, between Consolidated Water Co. Ltd. and Peter D.
Ribbins.
*10.14 Engagement Agreement, dated December 30, 1998 between
Consolidated Water Co. Ltd. and Jeffrey Parker.
*10.15 Amendment of Engagement Agreement, dated October 26, 1999,
between Consolidated Water Co. Ltd. and Jeffrey Parker.
*10.16 Second Amendment of Engagement Agreement, dated March 21,
2000, between Consolidated Water Co. Ltd. and Jeffrey
Parker.
*10.17 Employment Contract, dated August 19, 1998, between Cayman
Water Company Limited and Gregory Scott McTaggart.
*10.18 First Amendment to Employment Contract, dated April 17,
2000, between Consolidated Water Co. Ltd. and Gregory Scott
McTaggart.
*10.19 Employment Contract, dated August 31, 1997, between Cayman
Water Company Limited and Alexander S. Bodden.
*10.20 First Amendment to Employment Contract, dated April 17,
2000, between Consolidated Water Co. Ltd. and Alexander S.
Bodden.
*10.21 Letter Agreement, dated August 2, 1999, between Consolidated
Water Co. Ltd. and J. Bruce Bugg.
10.22 Specimen Service Agreement, between Cayman Water Company
Limited and consumers (incorporated herein by reference to
the exhibit filed as part of our Registration Statement on
Form F-1 dated March 26, 1996).
10.23 Specimen Share Incentive Scheme Participation Agreement
between Cayman Water Company Limited and employees.
(incorporated herein by reference to the exhibit filed as a
part of our Form 20-F, dated December 7, 1994, Commission
File No. 0-25248).
*10.24 Summary Share Grant Plan for Directors.
10.25 Agreement, dated March 31, 1998, among Argyle/Cay-Water
Limited, J. Bruce Bugg and Cayman Water Company Limited
(incorporated herein by reference to the exhibit filed as
part of our Form 20-F for the fiscal year ended December 31,
1997, Commission File No. 0-25248).
10.26 Option Deed, dated August 6, 1997, between Cayman Water
Company Limited and American Stock Transfer & Trust Company
(incorporated herein by reference to the exhibit filed on
our Form 6-K, dated August 7, 1997, Commission File No.
0-25248).
*10.27 Stock Option Agreement, dated December 15, 1998, between
Consolidated Water Co. Ltd. and
R. Jerry Falkner.
10.28 Agreement, dated April 20, 1999, among Consolidated Water
Co. Ltd., Ellesmere Britannia Ltd., Cayman Hotel & Golf,
Inc. and Hyatt Britannia Corporation (incorporated herein by
reference to the exhibit filed on our Form 20-F, for the
fiscal year ended December 31, 1998, Commission File No.
0-25248).
10.29 Settlement Agreement, dated April 20, 1999, among
Consolidated Water Co. Ltd., Ellesmere Britannia Ltd.,
Cayman Hotel & Golf, Inc. and Hyatt Britannia Corporation
(incorporated herein by reference to the exhibit filed on
our Form 20-F, for the fiscal year ended December 31, 1998,
Commission File No. 0-25248).
*10.30 Consulting Agreement, dated November 17, 1998, between
Cayman Water Company Limited and R.J. Falkner & Company,
Inc.
*10.31 Agreement, dated November 12, 1997, between Commonwealth
Water Limited, Cayman Water Company Limited and RAV Bahamas
Limited.
</TABLE>
II-2
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<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
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*10.32 Agreement, dated July 24, 1995, between Cayman Water Company
Limited and Galleon Beach Resort Limited.
*10.33 Agreement, dated February 9, 1994, between Cayman Water
Company Limited and Widar Ltd.
*10.34 Credit Facility Agreement, dated December 30, 1998, between
Consolidated Water Co. Ltd. and Royal Bank of Canada.
10.35 Finance Contract, dated October 3, 1991, between European
Investment Bank and Cayman Water Company Limited
(incorporated herein by reference to the exhibit filed as
part of our Form 20-F, dated December 7, 1994, Commission
File No. 0-25248).
10.36 Warrant issued to Joseph Roberts & Co., Inc. (incorporated
herein by reference to the exhibit filed as part of our
Registration Statement on Form F-1 dated March 26, 1996,
Commission File No. 333-00038).
10.37 Credit Facility Agreement, dated March 22, 2000, between
Consolidated Water Co. Ltd. and Royal Bank of Canada.
10.38 Debenture, dated June 1, 1979, among Cayman Water Company
Limited, The Royal Bank of Canada, Philip Lustig and Cayman
Public Utilities, Ltd.
10.39 Deed, dated April 30, 1981, between Cayman Water Company
Limited and The Royal Bank of Canada.
10.40 Second Deed, dated March 10, 1983, between Cayman Water
Company Limited and The Royal Bank of Canada.
10.41 Third Deed, dated December 6, 1984, between Cayman Water
Company Limited and The Royal Bank of Canada.
10.42 Fourth Deed, dated August 31, 1989, between Cayman Water
Company Limited and The Royal Bank of Canada.
10.43 Fifth Deed, dated June 16, 1992, between Cayman Water
Company Limited and The Royal Bank of Canada.
10.44 Variation of Debenture, dated October 11, 1999, between
Consolidated Water Co. Ltd. and The Royal Bank of Canada.
10.45 Collateral Charge, dated June 1, 1979, between Cayman Water
Company Limited and The Royal Bank of Canada.
10.46 Deed, dated June 1, 1979, between Cayman Water Company
Limited, The Royal Bank of Canada and Philip Lustig.
10.47 Variation of Charge, dated April 30, 1981, between Cayman
Water Company Limited and The Royal Bank of Canada.
10.48 Collateral Charge to a Variation of Debenture, dated October
11, 1999, between Consolidated Water Co. Ltd. and Royal Bank
of Canada.
10.49 Second Debenture of Cayman Water Company Limited, dated July
16, 1992, together with Second Collateral Charge dated July
23, 1992 (incorporated by reference to the exhibit filed as
part of our Form 20-F, dated December 7, 1994, Commission
file No. 0-25248).
*23 Consent of PricewaterhouseCoopers.
*24 Power of Attorney.
</TABLE>
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* Previously filed with the registration statement.
II-3
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form F-2 and has duly caused this post-effective
amendment no. 1 to the registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized in Grand Cayman, Cayman Islands, on the
22nd day of May, 2000.
CONSOLIDATED WATER CO. LTD.
By: /s/ JEFFREY M. PARKER
------------------------------------
Jeffrey M. Parker, Chairman and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
post-effective amendment no. 1 to the registration statement has been signed
below by the following persons in the capacities and on the dates indicated.
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SIGNATURE TITLE DATE
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/s/ JEFFREY M. PARKER Chairman of the Board of May 22, 2000
- - - - - - - ---------------------------------------------------- Directors and Chief Executive
Jeffrey M. Parker Officer
/s/ PETER D. RIBBINS President, Chief Operating May 22, 2000
- - - - - - - ----------------------------------------------------- Officer and Director
Peter D. Ribbins
/s/ ALEXANDER S. BODDEN Vice President-Finance and May 22, 2000
- - - - - - - ---------------------------------------------------- Secretary
Alexander S. Bodden
* /s/ GREGORY MCTAGGART Vice President-Operations May 22, 2000
- - - - - - - ----------------------------------------------------
Gregory McTaggart
Vice-Chairman of the Board of
- - - - - - - ----------------------------------------------------- Directors
J. Bruce Bugg, Jr.
* /s/ BRIAN E. BUTLER Director May 22, 2000
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Brian E. Butler
Director
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Hal N. Carr
* /s/ RICHARD L. FINLAY Director May 22, 2000
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Richard L. Finlay
* /s/ CLARENCE B. FLOWERS, JR. Director May 22, 2000
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Clarence B. Flowers, Jr.
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II-4
<PAGE> 7
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SIGNATURE TITLE DATE
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<C> <S> <C>
Director
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Frederick W. McTaggart
* /s/ WILMER PERGANDE Director May 22, 2000
- - - - - - - ----------------------------------------------------
Wilmer Pergande
* /s/ RAYMOND WHITTAKER Director May 22, 2000
- - - - - - - ----------------------------------------------------
Raymond Whittaker
* By: /s/ JEFFREY M. PARKER
-----------------------------------------------
Jeffrey M. Parker
as Attorney-in-Fact
</TABLE>
II-5
<PAGE> 1
Exhibit 10.37
[ROYAL BANK OF CANADA LETTERHEAD]
March 22, 2000
PRIVATE & CONFIDENTIAL
Consolidated Water Co. Ltd.
Box 1114
Grand Cayman, B.W.I.
ATTENTION: Alex Bodden
Dear Sir:
RE: Confirmation of Credit Facilities
Further to our recent discussions, and subject to the undernoted terms and
conditions, we are pleased to offer you financing as follows:
LENDER: ROYAL BANK OF CANADA (The "Bank")
BORROWER: Consolidated Water Co. Ltd. (The "Borrower")
AMOUNT: Segment 1) $1,000,000 - Overdraft, revolving
Segment 2) $1,000,000 - Term loan
Segment 3) $1,500,000 - Term loan
Segment 4) $1,500,000 - Term loan
Segment 5) $ 500,000 - Overdraft, temporary
CURRENCY: All dollar amounts in this letter refer to United States
funds, unless otherwise specified.
PURPOSE: Segment 1) General Operating purposes
Segment 2) Term out outstanding overdraft
Segment 3) Office Building
Page 1 of 9
<PAGE> 2
Segment 4) 40% interest in Sea Tec Belize Ltd.
Segment 5) Temporary Operating
INTEREST RATES: Segment 1) USD Prime + 1%/KYD Prime + 1%
Segment 2) Libor + 1.50%
Segment 3) Libor + 1.50%
Segment 4) Libor + 1.50%
Segment 5) USD Prime + 1%/KYD Prime + 1%
The Borrower shall pay interest monthly in arrears on
Prime-based facilities at the annual rate set out above
calculated on a daily basis and based on the actual number
of days elapsed in the period for which interest is being
calculated divided by 365. The annual rates of interest to
which the rates calculated in accordance with the foregoing
provisions are equivalent, are the rates so determined
multiplied by the actual number of days in a one year period
calculated from the first day on which interest is to be
calculated and divided by 365. These rates apply after as
well as before maturity, default, and judgement, with
interest on overdue interest at the same rate as on the
principal.
Libor loans:
Interest on Libor loans shall be payable on each Libor
interest date. The yearly rates of interest to which the
rates determined in accordance with the Libor provisions of
this agreement are equivalent, are rates so determined
multiplied by the actual number of days in a year and
divided by 360.
SERVICE PRICING: a) An annual review fee of 1/16% ($3,215 this year) will be
charged to cover the administration involved in
reviewing the company's financial information and
re-establishing facilities.
b) Any temporary excesses and additional credit
requirements are subject to approval and may be assessed
a fee of up to 1%, minimum $1,000.
c) Any requests for amendments to the Borrower's current
line of credit may be assessed a fee in the minimum
amount of $1,000 per occasion.
Page 2 of 9
<PAGE> 3
REPAYMENT: Segment 1) Revolving; repayment in full upon demand.
Segment 2) Consecutive monthly principal payments of $8,333
plus interest (5 year term, 10 year amortization).
Segment 3) Consecutive monthly principal payments of $12,500
plus interest (5 year term, 10 year amortization).
Segment 4) Consecutive monthly principal payments of $12,500
plus interest (5 year term, 10 year amortization).
Segment 5) Due in full June 30, 2000.
Prohibited Interest - Nothing in this agreement shall be
construed as obliging the Borrower to pay any interest,
charges or other expenses as provided by this agreement or
in any other security agreement related thereto in excess of
what is permitted by law.
PREPAYMENTS: Segment 1) may be prepaid in whole or in part without
penalty.
Segments 2) 3) & 4) may only be repaid at maturity (maturity
of each term, i.e., 30 days, 60 days, 90 days etc.)
SECURITY: General Security for all Loans
Certified copy of directors' resolutions, bylaws, legal
opinions and attendant documents as may be requested by the
Bank.
Fixed and floating charge debenture of USD$2,500,000, with
fixed charge covering West Bay Beach North, Block 11D,
Parcel 8 and collateral charge covering Governor's Harbour
property and floating charge covering all other assets of
the Borrower (To be up stamped to USD$5,500,000 when
Segments 3 & 4 drawn down).
Page 3 of 9
<PAGE> 4
Guarantee & Postponement of Claim in favour of
Consolidated Water Co. Ltd. signed by Cayman Water
Company Limited.
INSURANCE: The Borrower will lodge with the Bank
comprehensive insurance policies satisfactory to
the Bank, covering buildings, equipment and
inventory with loss made payable firstly to the
Bank.
In addition, Construction and All Risk insurance
is also to be assigned with loss payable to Royal
Bank during the construction period of the office
building (Segment 3).
LIFE INSURANCE: The Borrower acknowledges that loans are not life
insured.
REPRESENTATIONS,
WARRANTIES &
ACKNOWLEDGMENTS: The Borrower represents and warrants to the Bank
that:
1) it is a corporation validly incorporated and
subsisting under the laws of Cayman Islands,
and that it is duly registered or qualified to
carry on business in all jurisdictions where
the character of the properties owned by it or
the nature of its business transacted makes
such registration or qualification necessary;
2) the execution and delivery of this Agreement
has been duly authorized by all necessary
actions and does not (i) violate any law or,
any provision of the charter or any unanimous
shareholders agreement to which it is subject
or, (ii) result in a breach of, a default
under, or the creation of any encumbrance on
the properties and assets of it under any
agreement or instrument to which it or any of
its properties and assets may be bound or
affected.
3) There is no provision in the Borrower's
articles, bylaws or any unanimous shareholder
agreement respecting the ability of the
Borrower to:
a) borrow money upon the credit of the
Borrower;
Page 4 of 9
<PAGE> 5
b) issue, reissue, sell or pledge debt
obligations of the Borrower;
c) give a guarantee on behalf of the Borrower
to secure performance of an obligation to
any person; and
d) mortgage, hypothecate, pledge or otherwise
create a security interest in all or any
property of the Borrower, owned or
subsequently acquired, to secure any debt
obligation of the Borrower.
4) The Borrower is in compliance with all
applicable statutes, regulations, orders and
bylaws enacted or adopted for the protection
and conservation of the natural environment.
5) The Borrower has obtained all certificates,
approvals, permits, consents, orders and
directions required concerning the
installation or operation of any machinery,
equipment or facility constituting assets of
the Borrower, or required concerning any land
of the Borrower, or required concerning any
structure, activity or facility on or in any
land of the Borrower, and the Borrower is not
aware of any circumstances which might give
rise to the revocation of any such
certificates, approvals, permits, consents,
orders and directions or the implementation of
further orders of directions relating to the
above which might affect the land or the
business of the Borrower which the Borrower
has not disclosed fully in writing to the
Bank.
COVENANTS: The Borrower, by accepting this Offer,
agrees:
1) to deliver to the Bank such financial and
other information as the Bank may
reasonably request from time to time.
2) not to grant or create any security
interest, lien, charge or encumbrance
affecting any of its properties or assets,
except for any security
Page 5 of 9
<PAGE> 6
interest granted to secure an obligation created solely
for the purchase of additional fixed assets required
for the efficient operation of its business with any
such security to cover only the assets purchased.
3) Debt to Equity shall not exceed 0.85.
"Equity" is defined as the total of share capital,
contributed surplus, retained earnings and postponed
shareholder loans minus intangible assets and amounts
owed to the Borrower by shareholders/associated
companies.
4) to maintain a Debt Servicing ratio of not less than
1.25.
All covenants in this agreement or any other agreement
between the Borrower and the Bank or other documentation or
security will remain in force for the benefit of the Bank at
all times before and after the making of advances hereunder
and/or the taking of security pursuant hereto.
OTHER CONDITIONS: If the Bank chooses to grant forbearance or a waiver of any
of the terms and conditions of this letter, this action will
not affect the Bank's ability to act on any subsequent
breach or default or the rights of the Bank resulting
therefrom.
EVIDENCE OF
INDEBTEDNESS: The Bank shall open and maintain at the Branch of Account,
accounts and records evidencing the Borrowings made
available to the Borrower by the Bank under this agreement.
The Bank shall record the principal amount of such
Borrowings, the payment of principal and interest on account
of the loans, and all other amounts becoming due to the Bank
under this agreement.
The Bank's accounts and records constitute, in the absence
of manifest error, prime facie evidence of the indebtedness
of the Borrower to the bank pursuant to this agreement.
Page 6 of 9
<PAGE> 7
The Borrower authorizes and directs the Bank to
automatically debit, by mechanical, electronic
or manual means, any bank account of the Borrower
for all amounts payable under this agreement, including
but not limited to, the repayment of principal and the
payment of interest, fees and all charges for the keeping
of such account.
EVENTS OF DEFAULT: Without limiting the Bank's right to make demand for
payment at any time on demand loans, the Bank may
immediately withdraw the Borrower's right to further borrow
under this agreement, demand immediate repayment of all
amounts outstanding, together with outstanding accrued
interest and realize on all or any portion of the security
granted to the Bank if any of the following events of
default occur:
1) Failure of the Borrower to pay any principal, interest
or other amounts when due pursuant to this agreement;
2) Failure of the Borrower to observe or perform any
covenant, condition or provision in this agreement or
other documentation or security;
3) If the Borrower becomes insolvent, commits an act of
bankruptcy, makes an assignment of property for the
benefit of its creditors, or enters into a bulk sale
of its assets without the prior written approval of
the Bank;
4) If any proceeding is taken with respect to a
compromise or arrangement with the creditors of the
Borrower, including under the Companies' Creditors
Arrangement Act or to have the Borrower declared
bankrupt or wound up, or to have a Receiver or Receiver
Manager appointed of any part of the mortgaged
property or if any encumbrancer takes possession of
any part thereof;
Page 7 of 9
<PAGE> 8
5) There occurs, in the sole opinion of the Bank:
(a) a material adverse change in the financial
condition of the Borrower; or
(b) an unacceptable change in ownership of the
Borrower; or
(c) legal implications detrimental to the affairs of
the Borrower;
CONDITIONS PRECEDENT: The obligation of the Bank to make these credit
facilities available to the Borrower is subject to and
conditional upon:
All security and/or documentation being completed
and registered in form and substance satisfactory
to the Bank.
PREDISBURSEMENT All regulatory approvals are to be in place prior to
CONDITIONS: advancing funds (Segment 3).
An Engineering firm, Architect or Quantity Surveyor
must certify budget adequacy, completeness of plans,
compliance to codes, adequacy of structure, Electrical
and mechanical systems and review and approve budget
survey and construction schedule prior to each
construction draw.
REVISION DATE: Without limiting any rights the Bank may have to
demand payment, these credit facilities will be
subject to review at the Bank's discretion and at
least annually.
LEGAL COSTS: All legal costs, fees, expenses, etc. incurred in
establishing these credit facilities, preparation and
maintenance of security and documentation are for
account of the Borrower.
ACCEPTANCE: This offer expires if not accepted in writing by April
15th, 2000, unless extended in writing by the Bank.
Page 8 of 9
<PAGE> 9
Please acknowledge your acceptance of the above terms and conditions by signing
the attached copy of this Offer to Finance in the space provided below and
returning to the undersigned. This Offer to Finance cancels and supersedes any
previous offers.
Yours truly,
ROYAL BANK OF CANADA
/s/ G.C. Plamondon
G.C. PLAMONDON,
Sr. Assistant Manager
Page 9 of 9
<PAGE> 1
Exhibit 10.38
DEBENTURE
[CAYMAN
ISLANDS
$2
Stamp]
THIS DEBENTURE is made the first day of June 1979.
BETWEEN: CAYMAN WATER COMPANY LIMITED a company
incorporated and existing under the laws of the
Cayman Islands with registered office in George
Town, Grand Cayman, Cayman Islands
DULY RECORDED
THIS 29TH DAY OF JUNE 1979
VOLUME LXIV
ENTRY ON 207 TO 265
/s/ (hereinafter called "the Borrower")
-------------------------
PUBLIC RECORDER OF THE FIRST PART
AND: THE ROYAL BANK OF CANADA of P.O. Box 245,
George Town, Grand Cayman, Cayman Islands
CERTIFIED A TRUE AND CORRECT
COPY OF THE (hereinafter called "the Bank")
/s/
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PUBLIC RECORDER OF THE SECOND PART
AND: PHILIP H. LUSTIG of P.O. Box 434,
Grand Cayman, Cayman Islands
(which shall include his personal
representatives heirs and assigns)
OF THE THIRD PART
AND: CAYMAN PUBLIC UTILITIES LTD. a Cayman
Islands company having its registered
office at George Town, Grand Cayman,
Cayman Islands
(which shall include the nominees and
assigns whomsoever of Cayman Public
Utilities Ltd.)
OF THE FOURTH PART
[PUBLIC RECORD OFFICE CAYMAN ISLANDS STAMP]
W H E R E A S: -
The Bank has agreed to extend credit facilities to the Borrower to the extent
of CI$200,000.00 upon having the repayment thereof secured with interest
thereon in manner hereinafter appearing.
NOW THIS DEED WITNESSETH as follows:-
1. In consideration of the said agreement:-
(a) The Borrower hereby covenants with the Bank that the Borrower will
on demand in writing made to the Borrower pay or discharge to the
Bank all monies and liabilities which shall for the time being (and
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whether on or at any time after such demand) be due owing or incurred to
the Bank by the Borrower whether actually or contingently and whether
solely or jointly with any other person and whether as principal or surety
including interest discount commission or other lawful charges and expenses
which the Bank may in the course of its business charge in respect of any
of the matters aforesaid or for keeping the Borrower's account and so that
interest shall be computed and compounded according to the usual mode of
the Bank as well after as before any demand made or judgement obtained
hereunder and will on such demand also retire all bills or notes which may
for the time being be under discount with the Bank and to which the
Borrower is a party whether as drawer acceptor maker or endorser without
any deduction whatsoever.
(b) A demand for payment or any other demand or notice under this Debenture may
be made or given by any manager or officer of the Bank or of any branch
thereof by letter addressed to the Borrower and sent by registered post to
or left at the charged property or at the last known place of business or
abode of the Borrower or at the option of the Bank if the Borrower is a
company its registered office and if sent by post shall be deemed to have
been made or given at noon on the third day following the day the letter
was posted.
(c) The Bank shall be at liberty from time to time to give time for payment of
any bills of exchange promissory notes or other securities which may have
been discounted for or received on account from the Borrower by the Bank or
on which the Borrower shall or may be liable as drawer acceptor maker
endorser or otherwise to any parties liable thereon or thereto as the Bank
in its absolute discretion shall think fit without releasing the Borrower
or affecting the Borrower's liability under this Debenture or the security
hereby created.
(d) The Bank shall on receiving notice that the Borrower has incumbered or
disposed of the charged property or any part thereof be entitled
[PUBLIC RECORD OFFICE CAYMAN ISLANDS STAMP]
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to close the Borrower's then current account or accounts and to open a
new account or accounts with the Borrower and (without prejudice to
any rights of the Bank to combine accounts) no money paid in or
carried to the Borrower's credit in any such new account shall be
appropriated towards or have the effect of discharging any part of the
amount due to the Bank on any such closed account.
(e) This Charge shall be a continuing security to the Bank notwithstanding
any settlement of account or other matter or thing whatsoever and
shall not prejudice or affect any security which may have been created
by any deposit of title deeds or other documents which may have been
made with the Bank prior to the execution hereof relating to the
charged property or to any other property or any other security which
the Bank may now or at any time hereafter hold in respect of the
moneys hereby secured or any of them or any part thereof respectively.
(f) The Bank shall be entitled to apply all or any moneys received by it
from the Borrower or any person or persons liable to pay the same on
the Borrower's account to any account of the Borrower with the Bank to
which the same may be applicable.
2. For further securing the payment of all sums due or that may become due
hereunder the Borrower as beneficial owner:-
(i) charges by way of first legal charge the land belonging to the
Borrower comprised within Registration Section West Bay Beach North
Block 11D Parcel 8 of which the Borrower warrants to the Bank that it
is the registered proprietor with absolute title and the Borrower
covenants that it will at its own cost and expense execute stamp
register and deliver to the Bank a first registered Charge against the
title to the said Parcel 8 by way of collateral and additional
security expressed to be supplemental hereto;
[PUBLIC RECORD OFFICE CAYMAN ISLANDS STAMP]
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(ii) assigns to the Bank all and singular the goods chattels and things
described in the Schedule hereto together with all additions replacements
and improvements affixed or attached thereto to hold the same unto and to
the use of the Bank absolutely subject to the proviso for re-assignment
and the terms and conditions hereinafter contained AND subject also to the
right of the Borrower to remain in possession thereof until the Bank's
security shall have become enforceable and to effect repairs and
replacements in the ordinary course of business.
(iii) charges by way of first floating security all the undertaking and all
other assets of the Borrower with the exception of those items contained
in sub-clauses (i) and (ii) hereof and all its property whatsoever and
wheresoever both real and personal present and future including its
uncalled capital for the time being but so that the Borrower shall not be
at liberty to create any other charge or mortgage which will rank in
priority to or pari passu with or second or subsidiary to this security or
to sell the undertaking of the Borrower or any portion thereof or to deal
with its book or other debts or securities for money otherwise than in the
ordinary course of its business;
(iv) assigns to the Bank the goodwill and connection of the business or
businesses now or at any time during the continuance of this security
carried on by or for the account of the Borrower and the benefit of all
licences held in connection therewith excluding any licences or franchises
granted by the Government of the Cayman Islands.
3. The charges and assignments hereby made shall rank in point of security
pari passu with the existing charge bill of sale and floating charge over
all the assets of the Borrower in favour of Philip H. Lustig as provided
in an Agreement of even date between Philip H. Lustig (1) the Bank (2) and
the Borrower (3) as varied from time to time (and so that subject to any
variation thereto all net sums realised upon enforcement of such
securities shall be applied as to 75% thereof to the Bank and 25% thereof
to Lustig) but in priority to a floating charge over the assets of the
[Public Record Office Cayman Islands stamp]
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Borrower in favour of Cayman Public Utilities Ltd., and the said Cayman
Public Utilities Ltd., as evidenced by its execution of these presents but
subject to the proviso hereinafter contained hereby subordinates all
securities presently held by it for the debt owed by the Borrower to it to
all charges and assignments hereby made or to be made in favour of the Bank
to the intent that the Bank shall provided that the principal sum secured by
this Debenture does not exceed CI$200,000.00 or its equivalent in United
States Dollars always rank as pari passu first chargee of all the assets of
the Borrower in priority to all security interests present and future of
Cayman Public Utilities Ltd., and Philip H. Lustig and Cayman Public
Utilities Ltd., hereby respectively covenant with the Bank that they will
not without the previous written consent of the Bank advance any further
sums to the Borrower upon the security of any of the assets of the Borrower.
4. If:-
(i) the Borrower shall acquire any additional land; or
(ii) Cayman Public Utilities Ltd., shall call for any fixed charge upon
any assets of the Borrower pursuant to Clause 7 of a Deed of
Assignment made the 1st day of December 1978 between First Cayman
Building and Development Limited the said Cayman Public Utilities
Ltd., and the Borrower recorded on 19th January 1979 at Volume LXIII
Entry No. 260 Folio 232; or
(iii) the Bank shall by written notice to the Borrower require a fixed
charge upon any assets of the Borrower not being stock in trade book
debts or any other current or circulating asset;
then the Borrower shall at its own expense grant to the Bank and to Philip
H. Lustig first fixed charges on such land or asset aforesaid which charges
shall rank pari passu with each other in accordance with the terms of the
agreement of even date referred to in Clause 3 of this Debenture or any
variation of such agreement but which shall rank in priority to all charges
present and future in favour of Cayman Public Utilities Ltd., provided
always that the amounts thereby secured to the
[PUBLIC RECORD OFFICE CAYMAN ISLANDS STAMP]
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Bank and to Philip H. Lustig shall not in the aggregate exceed CI$400,000.00
or the equivalent in United States Dollars; and Cayman Public Utilities Ltd.
hereby consents to the subordination as aforesaid of its charges present and
future.
5. Notwithstanding any other provisions of this Debenture all sums owing and
other monies payable hereunder shall become immediately due and payable and
the first floating security hereby created shall become fixed and all unpaid
interest and any other monies secured hereby or by any collateral or
additional charges or securities hereto shall become immediately due and
payable and in addition to all other rights or powers statutory or otherwise
which will also then arise and become immediately exercisable the Bank shall
have power to appoint any person or persons to be a Receiver and Manager of
the property hereby charged or any part thereof at such remuneration and on
such basis and on such other terms and conditions as the Bank shall specify
in its appointment and to remove any Receiver and Manager so appointed and
appoint another or others in his or their place as follows:-
(i) If the Borrower shall default in the payment of any monies due or
owing hereunder or
(ii) If any representation or warranty made in or in connection with this
Debenture or the execution and delivery thereof or in any document or
certificate furnished pursuant hereto shall prove at any time to have
been incorrect in any material respect or
(iii) If the Borrower shall default in the performance or observance of an
agreement covenant stipulation or obligation contained or implied in
this Debenture whether negative or otherwise (other than obligations
in respect of the payment of any monies hereunder) or
(iv) If by or under the authority of any Government the management of the
Borrower or its authority in the conduct of its business is curtailed
to the point of making it effectively inoperative by any seizure or
intervention or proceedings of any nature or
[PUBLIC RECORD OFFICE CAYMAN ISLANDS STAMP]
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(v) If a judgement against the Borrower for any sum exceeding One Hundred
Cayman Islands Dollars (CI$100.00) or an order involving the payment
by the Borrower of One Hundred Cayman Islands Dollars (CI$100.00) or
more without the necessity of a judgement shall be obtained in any
Court and shall remain unsatisfied for seven (7) days or
(vi) If a distress or execution shall be levied or enforced upon or against
any of the chattels or property of the Borrower and shall not be
satisfied within seven (7) days of the levy or enforcement of such
distress or execution or
(vii) If the Borrower makes or attempts to make any alteration to the
provisions of its Memorandum or Articles of Association which might in
the opinion of the Bank affect its interests hereunder or shall fail
or neglect to comply with any or all of the provisions of the
Companies Law 1960 or any statutory modification or re-enactment
thereof or any other of the laws of the Cayman Islands in so far as
the same may relate to it or
(viii) If the Borrower shall without the written consent of the Bank assign
any of its book debts or pledge any of its assets or create or purport
or attempt to create any charge mortgage or incumbrance ranking or
which may by any means be made to rank pari passu with or in priority
to this Debenture or second or subsidiary to this Debenture or
(ix) If an order is made or an effective resolution is passed for the
winding up of the Borrower except for the purpose of a reconstruction
or amalgamation the terms of which have been previously approved in
writing by the Bank or
(x) If an incumbrancer takes possession or a receiver is appointed of any
part of the assets of the Borrower or
(xi) If any event shall occur or circumstances exist by which all or any
part of the security for the indebtedness of the Borrower to Philip
H. Lustig shall become enforceable or
[PUBLIC RECORD OFFICE CAYMAN ISLANDS STAMP]
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(xii) If the Borrower ceases or threatens to cease to carry on its
business or substantially the whole of its business or
(xiii) If the Borrower shall have sold or (save as may be provided in
any license or franchise from the Government of the Cayman
Islands) agreed to sell the whole of its undertaking or any
substantial port thereof otherwise than with the previous
written consent of the Bank or
(xiv) If the Borrower is unable to pay its debts within the meaning
of Section 92 of the Companies Law 1960 or any statutory
modification or re-enactment thereof or
(xv) If at any time the Bank shall in good faith determines that a
material adverse change in the financial condition of the
Borrower has occurred and that the Borrower is unlikely to be
able to meet any of is obligations hereunder or
(xvi) If there shall be any breach or default whatsoever of any of
the express or implied terms and conditions of any of the said
collateral or additional charges or securities hereto or
(xvii) If by or as a result of the act default or omission of the
Borrower or any third party the Bank in its sole discretion is
of the opinion that its security is threatened or in jeopardy
or might become so.
6. In addition to all other powers vested in him by Law or otherwise a
Receiver and Manager shall have the following powers:-
(i) To receive the rents and profits of the property hereby
charged from the present and future tenants users and
occupiers thereof and in the case of the non-payment thereof
to use all and any lawful remedies for recovering and
obtaining payment of the same and to do all things necessary
and proper for recovering and receiving the same as fully and
effectually as the Borrower could do
[PUBLIC RECORD OFFICE CAYMAN ISLANDS STAMP]
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(ii) The Borrower by these presents directs the present and future tenants
users and occupiers of the property hereby charged to pay the said rent
and profits of the same to the Receiver and Manager when so appointed
(iii) The receipt of the Receiver and Manager shall be an effectual discharge
to such tenants users and occupiers for such rents and profits
(iv) The Receiver and Manager is hereby authorised to make such allowances
to and arrangements and compromises with such tenants users and
occupiers as he or they shall think fit and to give notice to quit take
actions for ejectment and recovery of possession of any buildings
assets or otherwise and to relet such buildings assets or any part
thereof from time to time to such persons and upon such terms and
conditions as he or they may consider reasonable
(v) To take possession of collect and get in any property hereby charged
and for that purpose to take any proceedings in the name of the
Borrower or otherwise as may seem expedient
(vi) To carry on manage or concur in carrying on and managing the business
of the Borrower or any part thereof and for any of those purposes to
raise or borrow any money that may be required upon the security of the
whole or any part of the property hereby charged
(vii) To appoint managers accountants lawyers agents officers servants and
workmen for any of the aforesaid purposes at such salaries or
remuneration and for such periods and on such terms as he or they may
determine
(viii) To sell or concur in selling and to let or concur in letting and to
accept surrenders of leases or tenancies of all or any of the property
hereby charged and to carry any such sale letting or surrender into
effect by conveying transferring leasing letting or accepting
surrenders in the name and on behalf of the Borrower or other the
estate owner and any such sale may be for cash
[PUBLIC RECORD OFFICE CAYMAN ISLANDS STAMP]
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debentures or other obligations shares stock or other valuable
consideration and may be payable in a lump sum or by installments
spread over such period as the Bank shall think fit and plant
machinery and other fixtures may be severed and sold separately from
the premises containing them without the consent of the Borrower being
obtained thereto
(ix) To make any arrangement or compromise which he or they shall think
expedient in the interests of the Bank
(x) To make and effect all repairs improvements and insurances and renew
such of the plant machinery chattels and effects of the Borrower as
shall be worn out lost or otherwise become unserviceable or as he or
they shall think fit
(xi) To do all such other acts and things as may be considered to be
incidental or conducive to any of the matters and powers aforesaid
and which he or they may and can lawfully do as agent for the
Borrower.
7. Any and all monies received by such Receiver and Manager shall be applied
as follows:-
(i) In the discharge of all rents and taxes;
(ii) In satisfying all encumbrances if any ranking in priority to this
security;
(iii) In paying his or their remuneration costs and expenses;
(iv) In paying all monies due to the Bank and the said Philip H. Lustig in
accordance with the agreement of even date between Philip H. Lustig
(1) the Bank (2) and the Borrower (e) as the same may from time to
time be varied;
(v) In paying the balance if any to the Borrower or any subsequent
chargee of which such Receiver and Manager has notice.
8. A Receiver and Manager appointed by the Bank shall be the agent of the
Borrower and the Borrower shall alone be liable for his or their acts
defaults or remuneration.
9. The Borrower hereby irrevocably appoints the Bank and any Attorney of the
Bank and any Receiver and Manager appointed pursuant to Clause 5
[PUBLIC RECORD OFFICE CAYMAN ISLANDS STAMP]
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hereof to be the Attorney of the Borrower in the name and on behalf of the
Borrower to execute and give any assurances and other things which the
Borrower ought to execute and do under the provisions hereof and generally
to use the name of the Borrower in the exercise of all or any of the powers
hereby conferred on the Bank or any Receiver and Manager appointed by it.
10. After the security constituted by this Debenture has become enforceable the
Borrower shall from time to time and at all times thereafter execute and do
all such assurances and things as the Bank or any Receiver and Manager
appointed by it may require for facilitating the realisation of the
property hereby charged and for exercising all the powers authorities and
discretions hereby conferred on the Bank and any Receiver or Receivers
appointed by it and in particular the Borrower shall:-
(i) execute assignments transfers or any other assurances of the property
hereby charged as the Bank or any Receiver or Receivers appointed by
it may require to the Bank or to its nominee
(ii) perform or cause to be performed all acts and things requisite or
desirable for the purpose of giving effect to the exercise of the
said powers and authorities and
(iii) give all notices orders and directions which the Bank or any Receiver
and Manager appointed by it may think expedient.
11. The Bank shall not nor shall any Receiver and Manager appointed by it by
reason of the Bank or such Receiver and Manager entering into possession of
the property hereby charged or any part thereof be liable to account as
mortgagee in possession for anything except actual receipts or be liable
for any loss upon realisation or for any default or omission for which a
mortgagee in possession might be liable.
12. No purchaser chargee or other person or company dealing with the Bank or
with any Receiver and Manager appointed by it or with his its or their
attorneys or agents shall be concerned to inquire whether the powers
exercised or purported to be exercised have become exercisable
[PUBLIC RECORD OFFICE CAYMAN ISLAND STAMP]
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or whether any money remains due actually or contingently on the security
of this Debenture or as to the necessity or expediency of the stipulations
and conditions subject to which any sale shall have been made or otherwise
as to the propriety or regularity of such sale calling in collection or
conversion or to see to the application of any money paid to the Bank and
in the absence of malafides on the part of such purchaser chargee or other
person or company such dealing shall be deemed so far as regards the safety
and protection of such purchaser chargee person or company to be within the
powers hereby conferred and to be valid and effectual accordingly. Provided
that this Clause shall be without prejudice to all and any rights and
remedies of the Borrower and all persons or companies claiming through the
Borrower for any impropriety on the part of the Bank or any Receiver
Manager Attorney or Agent as aforesaid.
13. The Borrower hereby represents and warrants to the Bank that it is a duly
organised corporation existing in good standing under the Laws of the
Cayman Islands and that it is duly qualified to do business wherever
necessary to carry on its present operations and that the making and
performance of this Debenture is within its powers having been duly
authorised by all necessary governmental and corporate approvals and does
not contravene any law or any contractual restriction binding on the
Borrower and that this Debenture is a legal valid and binding obligation of
the Borrower enforceable against the Borrower in accordance with its terms
and that there are no pending or threatened actions or proceedings before
any court or administrative agency which may materially adversely affect
the Borrower or its financial conditions and operations.
14. The Borrower hereby further covenants with the Bank in respect of the
property hereby charged as follows:-
(i) To insure and at all times keep insured by way of an all risks
insurance policy in the names of the Borrower and the Bank against
fire earthquake windstorm riot and fire arising therefrom
[PUBLIC RECORD OFFICE CAYMAN ISLANDS STAMP]
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respectively accidental damage theft or such other risks as the Bank
may require all property of the Borrower of an insurable nature to its
full insurable value to the satisfaction of the Bank in an insurance
office acceptable to the Bank and on demand to deliver to the Bank all
such policies of insurance and all receipts and vouchers for the
payment of premiums and the proceeds of any such insurance will be
payable to the Bank whose receipt shall be a good and sufficient
discharge therefor and may at the option of the Bank be applied
towards the replacement of the property or repayment of any moneys
owed by the Borrower hereunder
(ii) At all times during the continuance of this Debenture to keep up and
maintain and preserve all the property of the Borrower in good and
merchantable order and condition
(iii) Save in the ordinary course of use or enjoyment or for the purpose of
effecting repairs not to part with the possession of nor to remove any
property of the Borrower from the premises where the same are usually
stored or kept nor in any event to cause or permit the same to be
removed from the Cayman Islands without the consent in writing of the
Bank
(iv) Not to transfer lease let or hire or part with the possession or
create or suffer to be created any mortgage or charge or lien or make
any assignment on or of the property hereby charged or any of the
property of the Borrower without the consent in writing of the Bank
(v) To pay to the Bank on demand all costs charges and expenses incurred
or to be incurred by the Bank in relation to those presents or any
default hereunder or the protection or enforcement of any of the
rights of the Bank hereunder together with the stamp duty and
recording fees hereon
(vi) That the Bank shall be entitled by its officers servants or agents at
all times during the continuance of this Debenture with or without
workmen agents or servants to enter upon any premises of
[PUBLIC RECORD OFFICE CAYMAN ISLANDS STAMP]
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the Borrower or any part or parts thereof and to view search and see the
state and condition of the property of the Borrower or any part or parts
thereof with full and free power of ingress egress and regress for such
purpose and of all decays defects and wants of preservation and
maintenance found upon such inspection to give or leave notice in writing
to the Borrower which shall forthwith make good repair and supply
according to any notice given hereunder so as at all times to keep up
maintain and preserve the property of the Borrower in good order and
condition
(vii) To carry on its business in a proper and efficient manner
(viii) Not to sell or otherwise dispose of the whole or any substantial part of
its undertaking or assets without the consent in writing of the Bank
(ix) At all times during the continuance of this security to pay all licence
duties assessable on any of the property hereby charged and the rents
rates and taxes of the several premises wherein such property or any part
thereof shall be and to keep such property from being distrained for
rents rates or taxes or from being taken under any execution and at all
times to produce on demand to the Bank the receipts for such rents rates
and taxes
(x) To furnish to the Bank a balance sheet profit and loss account and
trading account showing the true position of the Borrower's affairs in
every year certified by a Chartered Account approved by the Bank or other
the auditor for the time being of the Borrower approved by the Bank and
also on demand from time to time to furnish such other information
respecting the monthly trading and operating figures as well as the
assets and liabilities of the Borrower as the Bank may require
(xi) So long as any money remains owing to the Bank hereunder not to declare
any dividend in favour of its shareholders without the prior written
consent of the Bank which consent shall not be unreasonably withheld.
[PUBLIC RECORD OFFICE CAYMAN ISLANDS STAMP]
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15. It shall be lawful for but not obligatory on the Bank to advance and pay
all sums of money necessary for the purpose of remedying any breach or
breaches of covenants or obligations whether imposed on the Borrower under
the provisions of this Debenture or any collateral or additional charges
or securities hereto or implied by law and all monies so paid and all
costs and expenses incurred by the Bank in relation to any inspection and
notice or the repairs or amendments mentioned in paragraph 14 (vi) hereof
shall be repayable on demand and in the meantime shall be a charge on the
property of the Borrower in addition to the other monies hereby secured
and shall bear interest at the prevailing applicable interest rate
computed from the time or times of paying or advancing the same.
16. No neglect omission or forebearance on the part of the Bank to take
advantage of or enforce any right or remedy arising out of any breach or
non-observance of any covenant or condition herein or in any collateral or
additional charges or securities hereto contained or implied shall be
deemed to be or operate as a general waiver of such covenant or condition
or the right to enforce or take advantage of the same in respect of any
breach or non-observance thereof either original or recurring.
17. This Debenture is in addition to and not in substitution for any other
security held by the Bank for all or any part of the money secured
hereunder and it is understood and agreed that the Bank may pursue its
remedies thereunder or hereunder concurrently or successively at its
option and any judgement or recovery hereunder or under any other security
held by the Bank for the monies secured hereunder shall not affect the
rights of the Bank to realise upon this or any other such security and any
default in the terms of this Deed shall constitute a default in the terms
of any other security held by the Bank and vice versa.
[PUBLIC RECORD OFFICE CAYMAN ISLANDS STAMP]
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18. This Debenture shall at the Borrower's expense be impressed in the first
instance with stamp duty to cover a principal sum of together with interest
thereon but the Bank shall be at liberty and is hereby empowered at any
time or times hereafter (without any further licence or consent on the part
of the Borrower) to impress additional stamp duty hereon or on any
collateral or additional charges or securities hereto at the Borrower's own
cost and expense to cover any sum or sums by which the Borrower's
indebtedness to the Bank may exceed the said amount and in the event of
such upstamping as aforesaid the Borrower hereby covenants and agrees with
the Bank that this Debenture and the property hereby charged and the
properties comprised in any collateral or additional charges or securities
hereto shall stand security for such additional sum or sums and be charged
with the payment thereof and all other monies including interest due
hereunder.
19. If and when all sums due or that may become due hereunder and all interest
and all other charges have been paid to the Bank in accordance with the
terms hereof the Bank will at the request and cost of the Borrower
appropriately discharge or cause satisfaction to be expressed therefor in
respect of this Debenture and all other securities held by the Bank
pursuant to this Debenture.
20. The expression the Bank hereinbefore used shall include the Bank's assigns
whether immediate or derivative and any appointment or removal under Clause
5 hereof may be made by writing signed or sealed by any of such assigns and
the Borrower hereby irrevocably appoints each of such assigns to be its
attorney in the terms and for the purposes in Clause 9 hereinbefore set
forth.
21. This Debenture and any collateral or additional charges or securities
hereto shall be governed and construed solely according to the Laws of the
Cayman Islands.
[PUBLIC RECORD OFFICE CAYMAN ISLANDS STAMP]
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22. (i) Phillip H. Lustig and Cayman Public Utilities Ltd., are parties to
this Debenture only for the purposes expressed herein and neither of
them shall be obligated by any covenant agreement or provision herein
by which they are not expressly stated to be obligated
(ii) Neither Clause 18 nor any other provision of this Debenture shall be
construed as a consent on the part of Cayman Public Utilities Ltd.,
to subordinate all or any part of its security from the Borrower to
the securities of the Bank and Philip H. Lustig to the extent that
the principal amounts secured by the said charges shall in the
aggregate exceed CI$400,000.00 or the equivalent in United States
Dollars
(iii) Cayman Public Utilities Ltd., hereby acknowledges and consents to the
arrangements between the Bank and Philip H. Lustig by which the
respective indebtedness of the Borrower to each of them and the
security therefor shall be held by the Bank with such indebtedness as
the Bank and Philip H. Lustig may from time to time agree
(iv) The Bank acknowledges that it has received a copy of the Letter of
Intent dated 13th October 1978 between the Cayman Islands Government
and the Borrower. Nothing contained in the said Letter of Intent or
in the Legislation or franchise referred to therein shall constitute
a breach of this Debenture or entitle the Bank to enforce its
security or accelerate repayment of any part of the indebtedness of
the Borrower.
23. The Bank expressly reserves the right to consolidate this Debenture with
any collateral or additional charges or securities hereto notwithstanding
any statutory provisions to the contrary.
S C H E D U L E
---------------
The goods chattels and things of the within Borrower comprised in the attached
Inventory thereof as initialled by and on behalf of the within Borrower
[PUBLIC RECORD OFFICE CAYMAN ISLANDS STAMP]
<PAGE> 18
-18-
IN WITNESS WHEREOF CAYMAN WATER COMPANY LIMITED and CAYMAN PUBLIC UTILITIES
LTD., have caused their respective Common Seals to be hereunto affixed by and
this Debenture to be signed by their duly authorised persons in that behalf and
PHILIP H. LUSTIG has hereunto set his hand and affixed his seal the day and
year first above written.
THE COMMON SEAL of CAYMAN WATER COMPANY ) CAYMAN WATER COMPANY LIMITED
)
LIMITED was hereunto affixed by )
)
C. Flowers, L. Downer and by ) Per: /s/ C. Flowers
) -----------------------------
in the presence of:- ) Director
)
/s/ illegible ) Per: /s/ L. Downer
- - - - - - - ------------------------------------------ ) -----------------------------
Witness Director
THE COMMON SEAL of CAYMAN PUBLIC UTILITIES ) CAYMAN PUBLIC UTILITIES LTD.
)
LTD., was hereunto affixed by )
)
and by ) Per: /s/ illegible
) ----------------------------
) Director
in the presence of:- )
)
/s/ illegible ) Per: /s/ illegible
- - - - - - - ------------------------------------------ ) ----------------------------
Witness Secretary
SIGNED, SEALED and DELIVERED by the said )
)
PHILIP H, LUSTIG in the presence of:- )
)
/s/ illegible ) /s/ PHILIP H. LUSTIG
- - - - - - - ------------------------------------------ ) ----------------------------
Witness PHILIP H. LUSTIG
[PUBLIC RECORD OFFICE CAYMAN ISLANDS STAMP]
<PAGE> 19
-19-
I, of George Town, Grand Cayman make oath and say:-
1. The foregoing Deed bearing date the 1st day of June One Thousand Nine
Hundred and Seventy Nine between CAYMAN WATER COMPANY LIMITED ("the
Borrower") of the first part, THE ROYAL BANK OF CANADA ("the Bank") of the
second part, PHILIP H. LUSTIG of the third part and CAYMAN PUBLIC UTILITIES
LTD., of the fourth part was made by the Borrower on the 15th day of May
One Thousand Nine Hundred and Seventy Nine.
2. I was present and did see L. Downer and C. Flowers, Director and Secretary
respectively of the Borrower affix the Common Seal of the Borrower to the
said Deed and sign the same as and for the proper act and deed of the
Borrower and execute acknowledge and deliver the said Deed for the purposes
therein mentioned on the 15th day of May One Thousand Nine Hundred and
Seventy Nine between the hours of four and five in the afternoon at George
Town, Grand Cayman, Cayman Islands.
3. The Borrower has its registered office at George Town, Grand Cayman, Cayman
Islands and is a company duly incorporated and existing under the laws of
the Cayman Islands.
4. That the name subscribed as a witness attesting to the due
execution of the said Deed by the Borrower is of the proper handwriting of
me this deponent and I reside at George Town, Grand Cayman and am an
attorney.
/s/ illegible
------------------------------
SWORN at George Town, Grand Cayman this 18th day of May One Thousand Nine
Hundred and Seventy Nine.
/s/ illegible
------------------------------
Justice of the Peace
[PUBLIC RECORD OFFICE CAYMAN ISLANDS STAMP]
<PAGE> 20
-20-
I, Anthony D of George Town make oath and say;-
1. The foregoing Deed bearing date the 1st day of June One Thousand Nine
Hundred and Seventy Nine between CAYMAN WATER COMPANY LIMITED ("the
Borrower") of the first part, THE ROYAL BANK OF CANADA ("the Bank") of the
second part, PHILIP H. LUSTIG of the third part and CAYMAN PUBLIC
UTILITIES LTD., of the fourth part was made by the said PHILIP H. LUSTIG
on the 12th day of April One Thousand Nine Hundred and Seventy Nine.
2. I was present and did see the said PHILIP H. LUSTIG sign, seal and deliver
the said Deed as and for his proper act and deed and execute acknowledge
and deliver the said Deed for the purposes therein mentioned on the 12th
day of April One Thousand Nine Hundred and Seventy Nine between the hours
of ten and in the morning at George Town.
3. The said PHILIP H. LUSTIG is a businessman and resides at
Grand Cayman.
4. That the name A. D subscribed as a witness attesting to the due
execution of the said Deed by the said PHILIP H. LUSTIG is of the proper
handwriting of me this deponent and I reside at George Town and am an
attorney.
/s/ illegible
-------------------------
SWORN at George Town this day of One Thousand Nine Hundred
and Seventy Nine.
/s/ illegible
-------------------------
justice of the Peace
[PUBLIC RECORD OFFICE CAYMAN ISLANDS STAMP]
<PAGE> 21
-21-
I, of George Town, Grand Cayman make oath and say:-
1. The foregoing Deed bearing date the 1st day of June One Thousand Nine
Hundred and Seventy Nine between CAYMAN WATER COMPANY LIMITED ("the
Borrower") of the first part, THE ROYAL BANK OF CANADA ("the Bank") of the
second part, PHILIP H. LUSTIG of the third part and CAYMAN PUBLIC
UTILITIES LTD., of the fourth part was made by the said CAYMAN PUBLIC
UTILITIES LTD., on the day of May One Thousand Nine Hundred and Seventy
Nine.
2. I was present and did see and , Director and
Secretary respectively of the said CAYMAN PUBLIC UTILITIES LTD., affix the
Common Seal of CAYMAN PUBLIC UTILITIES LTD., to the said Deed and sign the
same as and for the proper act and deed of the said CAYMAN PUBLIC UTILITIES
LTD., and execute acknowledge and deliver the said DEED for the purposes
therein mentioned on the 1st day of May One Thousand Nine Hundred and
Seventy Nine between the hours of and in the at George
Town, Grand Cayman, Cayman Islands.
3. The said CAYMAN PUBLIC UTILITIES LTD., has its registered office at George
Town, Grand Cayman, Cayman Islands and is a company duly incorporated and
existing under the laws of the Cayman Islands.
4. That the name subscribed as a witness attesting to the due
execution of the said Deed by the Borrower is of the proper handwriting of
me this deponent and I reside at George Town, Grand Cayman and am a Legal
Secretary.
/s/ illegible
-------------------------
SWORN at George Town, Grand Cayman this 4th day of May One Thousand Nine
Hundred and Seventy Nine.
/s/ illegible
-------------------------
Justice of the Peace
[PUBLIC RECORD OFFICE CAYMAN ISLANDS STAMP]
<PAGE> 22
Inventory of items which constitute the charge on Cayman Water Company by Royal
Bank of Canada as collateral on the proposed borrowing of $C1200,000.
Land. 2.692 acres, Plot D11, Parcel 8, West Bay Beach North.
1 Meco Distillation Unit PD2100 M3A
1 Meco Distillation Unit PD2100 M3B (January '79)
1 Meco Distillation Unit PD2100 M3B (February '79)
1 100,000 gallon flexible reservoir
2 500,000 gallon flexible reservoir
1 Plant Building
1 Fibreglass tank and nozzles
1 Pressure Tank, pumps and controls
1 Beachwell and sea pipelines
Pipeline distribution system
[PUBLIC RECORD OFFICE CAYMAN ISLANDS STAMP]
<PAGE> 1
Exhibit 10.39
THIS DEED is made the 30th day of April 1981
BETWEEN: CAYMAN WATER COMPANY LIMITED
- - - - - - - ------- ----------------------------
a Company incorporated and existing under the Laws of
the Cayman Islands with registered office in George
Town, Grand Cayman Islands
(hereinafter called "the Borrower")
OF THE ONE PART
AND: THE ROYAL BANK OF CANADA
- - - - - - - --- ------------------------
of P.O. Box 245, George Town, Grand Cayman, Cayman
Islands
(hereinafter called "the Bank")
OF THE OTHER PART
W H E R E A S :-
- - - - - - - -------------
(1) This Deed is made supplemental to the Debenture ("the Debenture") dated 1st
June 1979 between the Borrower, the Bank, Philip H. Lustig ("Lustig") and
Cayman Public Utilities Ltd., (CPU) and to all collateral security
documents and agreements executed pursuant thereto.
(2) The Bank has agreed to extend to the Borrower additional credit facilities
to the extent of CI$275,000.00 or its equivalent in United States Dollars
upon having the same secured in manner hereinafter appearing.
NOW THIS DEED WITNESSETH as follows:-
- - - - - - - ------------------------
1. In consideration of the said agreement the Borrower and the Bank hereby
agree that the Debenture shall hereafter stand as security for all sums
owing to the Bank from time to time up to a maximum of Four Hundred and
Seventy-Five Thousand Cayman Islands Dollars (CI$475,000.00) or its
equivalent in United States Dollars together with interest thereon provided
that the Bank shall have the right in its sole discretion to determine what
proportion of the additional credit facilities shall be advanced in Cayman
Islands Dollars and what proportion in United States Dollars.
[PUBLIC RECORD OFFICE CAYMAN ISLANDS STAMP]
<PAGE> 2
-2-
2. In so far as not hereby expressly waived or varied the Borrower and the
Bank hereby confirm the terms and provisions of the Debenture.
IN WITNESS WHEREOF the parties hereto have executed this Deed the day and year
first above written.
The Common Seal of CAYMAN WATER ) CAYMAN WATER COMPANY LIMITED
COMPANY LIMITED was hereunto )
affixed by L. Downer ) Per: /s/ L. Downer
and by J. Parker ) ------------------------
in the presence of:- ) Director
)
)
/s/ Neil Cavers Per: /s/ J. Parker
- - - - - - - --------------------------------- ------------------------
Witness Director
SIGNED, SEALED and DELIVERED ) THE ROYAL BANK OF CANADA
by D.J. Stewart )
the duly authorised attorney for )
the Bank in the presence of:- )
)
)
)
/s/ Neil Cavers Per: /s/ D.J. Stewart
- - - - - - - --------------------------------- ------------------------
Witness Attorney for the Bank
[PUBLIC RECORD OFFICE CAYMAN ISLANDS STAMP]
<PAGE> 3
-3-
I, Neil Cavers, of George Town, Grand Cayman,
Cayman Islands make oath and say:-
1. The foregoing Deed made between CAYMAN WATER COMPANY LIMITED ("the
Borrower") of the one part and THE ROYAL BANK OF CANADA ("the Bank") of the
other part was made by the Borrower and the Bank on the 30th day of
April, One Thousand Nine Hundred and Eighty One.
2. I was present and did see D.J. Stewart, the duly authorised attorney
for and on behalf of the Bank sign seal and as and for his proper act and
did execute acknowledge and deliver the said Deed for the purposes therein
mentioned on the 30th day of April One Thousand Nine Hundred and Eighty
One between the hours of 10:00 a.m. and 11:00 a.m. in the forenoon at
George Town, Grand Cayman, Cayman Islands.
3. The Bank is a banking corporation existing under the Laws of Canada and
having a branch office in George Town, Grand Cayman, Cayman Islands.
4. That the name Neil Cavers, subscribed as a witness attesting to the
due execution of the said Deed by the Borrower is of the proper handwriting
of me this deponent and I reside at George Town, Grand Cayman and am an
Attorney-at-Law.
--------------------------
Witness
SWORN at George Town, Grand Cayman, Cayman Islands this day of May One
Thousand Nine Hundred and Eighty One before me:-
----------------------------
Justice of the Peace
[PUBLIC RECORD OFFICE CAYMAN ISLANDS STAMP]
<PAGE> 4
-4-
I, Neil Cavers, of George Town, Grand Cayman, Cayman Islands make oath and say:-
1. The foregoing Deed made between CAYMAN WATER COMPANY LIMITED ("the
Borrower") of the one part and THE ROYAL BANK OF CANADA ("the Bank") of the
other part was made by the Borrower and the Bank on the 30th day of April
One Thousand Nine Hundred and Eighty One.
2. I was present and did see L. Downer and J. Parker Director and Director
respectively of the Borrower affix the Common Seal of the Borrower to the
said Deed and sign the same as and for the proper act and deed of the
Borrower and execute acknowledge and deliver the said Deed for the purposes
therein mentioned on the 30th day of April One Thousand Nine Hundred and
Eighty One between the hours of 10:00 and 11 in the fore noon at George
Town, Grand Cayman, Cayman Islands.
3. The Borrower has its registered office at George Town, Grand Cayman, Cayman
Islands and is a company duly incorporated and existing under the Laws of
the Cayman Islands.
4. That the name Neil Cavers, subscribed as a witness attesting to the due
execution of the said Deed by the Borrower is of the proper handwriting of
me this deponent and I reside at George Town, Grand Cayman and am an
Attorney-at-Law.
-------------------------------
Witness
SWORN at George Town, Grand Cayman, Cayman Islands this day of May One
Thousand Nine Hundred and Eighty One before me:-
---------------------------
Justice of the Peace
[PUBLIC RECORD OFFICE GRAND CAYMAN ISLANDS STAMP]
<PAGE> 1
Exhibit 10.40
Second Deed made the 10th day of March 1983.
BETWEEN: CAYMAN WATER COMPANY LIMITED
a Company incorporated and existing
under the laws of the Cayman Islands
with registered office in George Town,
Grand Cayman, Cayman Islands
(hereinafter called "the Borrower")
OF THE ONE PART
AND: THE ROYAL BANK OF CANADA
of P.O. Box 245, George Town,
Grand Cayman, Cayman Islands
(hereinafter called "the Bank")
OF THE OTHER PART
WHEREAS:-
(1) This Deed is made supplemental to the Debenture ("the Debenture") dated 1st
June 1979 between the Borrower, the Bank, Philip H. Lustig ("Lustig") and
Cayman Public Utilities Ltd. (CPU) as supplemented by Deed dated 30th April
1981 between the Borrower and the Bank and to all collateral security
documents and agreements executed pursuant thereto (hereinafter together
called "the Bank Security")
(2) The Bank has agreed at the request of the Borrower to exclude from the
security created by the Bank Security certain assets of the Borrower.
NOW THIS DEED WITNESSETH as follows:-
1. In consideration of the said agreement the Borrower and the Bank hereby
agree that there shall be excluded from the Bank Security and in particular
from the first floating charge over all the assets of the Borrower created
by and in terms of Clause 2 (iii) of the Debenture the asset of the
Borrower more particularly described in the Schedule hereto and that the
Bank shall have no rights or interests in the said asset in terms of the
Bank Security or otherwise.
2. In so far as not hereby expressly waived or varied the Borrower and the
Bank hereby confirm the terms and provisions of the Bank Security.
[PUBLIC RECORDER STAMP]
[PUBLIC RECORD OFFICE CAYMAN ISLANDS STAMP]
<PAGE> 2
- 2-
IN WITNESS the s hereto have executed this Deed the day and year
first above written
The Common Seal of CAYMAN WATER )
)
COMPANY LIMITED was hereunto )
)
affixed by ) CAYMAN WATER COMPANY LIMITED
)
and by )
)
In the presence of:-- ) Per: /s/ L. Downer
------------------------------
) Director
)
)
/s/ ) Per: /s/ Philip H. Lustig
- - - - - - - ------------------------- ------------------------------
Witness Secretary
SIGNED, SEALED and DELIVERED )
)
by VIVIAN GREENGRASS )
)
the duly authorised attorney for )
)
the Bank in the presence of:-- ) THE ROYAL BANK OF CANADA
)
)
)
)
/s/ Per: /s/
- - - - - - - ------------------------- ------------------------------
Witness Attorney for the Bank
SCHEDULE
--------
This is the Schedule referred to in the foregoing Second Deed:--
MECO Model PD625OM3B Vapour Compression Diesel Powered Sea Water
Conversion Unit which Unit includes a Cummins Model VT1710-635 Diesel
Engine, (4) MECO Plate Coolers, Compressor, Heat Recovery Boiler
Distilate, Feed Water and Blowdown Pumps NEMA 4 Electricals and Controls,
Deaerator, Acid and Chemical Injection Equipment and instruments, all
assembled on a (3) section skid.
[PUBLIC RECORD OFFICE CAYMAN ISLANDS STAMP]
<PAGE> 3
-3-
I. Arthur B. Hunter of George Town, Grand Cayman make oath and say:-
1. The foregoing Deed made between CAYMAN WATER COMPANY LIMITED ("the
Borrower") of the one part and THE ROYAL BANK OF CANADA ("the Bank")
of the other part was made by the Borrower and the Bank on the 10th day of
March One Thousand Nine Hundred and Eighty Three.
2. I was present and did see L. Dowher and P. Lustig Director and Secretary
respectively of the Borrower affix the Common Seal of the Borrower to the
said Deed and sign the same as and for the proper act and deed of the
Borrower and execute acknowledge and deliver the said Deed for the purposes
therein mentioned on the 10th day of March One Thousand Nine Hundred and
Eighty Three between the hours of 9 and 10 in the forenoon at George Town,
Grand Cayman, Cayman Islands.
3. The Borrower has its registered office at George Town, Grand Cayman, Cayman
Islands and is a company duly incorporated and existing under the Laws of
the Cayman Islands.
4. That the name subscribed as a witness attesting to the due
execution of the said Deed by the Borrower is of the proper handwriting of
me this document and I reside at George Town, Grand Cayman and am an
Attorney-at-Law.
-------------------
Witness
SWORN at George Town, Grand Cayman, Cayman Islands this 10th day of March One
Thousand Nine Hundred and Eighty Three before me:-
--------------------
Justice of the Peace
[PUBLIC RECORD OFFICE CAYMAN ISLANDS STAMP]
<PAGE> 4
-4-
I, Linda Ebanks of George Town, Grand Cayman, Cayman Islands make oath and
say:-
1. The Foregoing Deed made between CAYMAN WATER COMPANY LIMITED ("the
Borrower") of the one part and THE ROYAL BANK OF CAYMAN ("the Bank") of the
other part was made by the Borrower and the Bank on the day of One
Thousand Nine Hundred and Eighty Three.
2. I was present and did see Vivian Greengrass the duly authorized attorney
for and on behalf of the Bank sign seal and as and for his proper act and
did execute acknowledge and deliver the said Deed for the purposes therein
mentioned on the 10th day of February One Thousand Nine Hundred and Eighty
Three between the hours of 9:00 and 10:00 in the forenoon at George Town,
Grand Cayman, Cayman Islands.
3. The Bank is a banking corporation existing under the laws of Canada and
having a branch officer in George Town, Grand Cayman, Cayman Islands.
4. That the name Linda Ebanks subscribed as a witness attesting to the due
execution of the said Deed by the Bank is of the proper handwriting of me
this deponent and I reside at George Town, Grand Cayman, Cayman Islands and
am a Secretary.
/s/ Linda Ebanks
--------------------------
Witness
SWORN at George Town, Grand Cayman, Cayman Islands this 14th day of February
One Thousand Nine Hundred and Eighty Three before me:-
- - - - - - - -------------------- /s/
----------------------------
Justice of the Peace
[PUBLIC RECORD OFFICE CAYMAN ISLANDS STAMP]
<PAGE> 1
Exhibit 10.41
THIS THIRD DEED is made the 6 day of December 1984
BETWEEN CAYMAN WATER COMPANY LIMITED, a Company incorporated and existing
under the laws of the Cayman Islands with registered office in
George Town, Grand Cayman, Cayman Islands, (hereinafter called "the
Borrower") of the ONE PART
AND THE ROYAL BANK OF CANADA of P.O. Box 245, George Town, Grand
Cayman, Cayman Islands (hereinafter called "the Bank") of the
OTHER PART
WHEREAS:-
(1) This Deed is made supplemental to the Debenture ("the Debenture") dated 1
June 1979 between the Borrower, the Bank, Philip H. Lustig ("Lustig") and
Cayman Public Utilities Ltd. (CPU) as supplemented by Deed dated 30th
April 1981 between the Borrower and the Bank and the Second Deed dated 10
March 1983 between the Borrower and the Bank and to all collateral security
documents and agreements executed pursuant thereto (hereinafter together
called "the Bank Security").
(2) The Bank has agreed at the request of the Borrower to exclude from the
security created by the Bank Security certain assets of the Borrower.
NOW THIS DEED WITNESSETH as follows:-
1. In consideration of the said agreement the Borrower and the Bank hereby
agree that there shall be excluded from the Bank Security and in particular
from the first floating charge over all the assets of the Borrower created
by and in terms of Clause 2 (iii) of the Debenture and asset of the Borrower
more particularly described in the Schedule hereto and that the Bank shall
have no rights or interests in the said asset in terms of the Bank Security
or otherwise.
2. In so far as not hereby expressly waived or varied the Borrower and the Bank
hereby confirm the terms and provisions of the Bank Security.
IN WITNESS WHEREOF the parties hereto have executed this Deed the day and year
first above written.
[PUBLIC RECORD OFFICE CAYMAN ISLANDS STAMP]
<PAGE> 2
-2-
The Common Seal of CAYMAN WATER ) CAYMAN WATER COMPANY LIMITED
COMPANY LIMITED was hereunto ) per /s/ Jeffrey M. Parker
affixed by Jeffrey M Parker ) ------------------------------
and by ) per /s/ illegible
in the presence of:- ) ------------------------------
________________________________ )
Witness
Signed, sealed and delivered ) THE ROYAL BANK OF CANADA
by ) per /s/ illegible
the duly authorised attorney for ) ------------------------------
the Bank in the presence of:- )
________________________________ )
Witness
SCHEDULE
This is the Schedule referred to in the foregoing Third Deed:-
MECO Model PD 7000M3B/C Vapor Compression Diesel powered sea water
conversion unit which unit includes Cummins Model VT-17J0-P-635 12 cylinder
diesel engine centurbo vapor compressor, heat exchangers, blow down,
distillate and feed pumps, generator tower, chemical injection systems,
piping, evaporator, automatic and manual controls, gauges and instruments
complete with TARGA SYSTEM and 60 hp low pressure steam boiler with feed
make-up system and tank assembly.
[PUBLIC RECORD OFFICE CAYMAN ISLANDS STAMP]
<PAGE> 3
-3-
PROBATE
I, PETER D. RIBBINS of George Town, Grand Cayman, make oath and say:-
1. The foregoing Deed made between CAYMAN WATER COMPANY LIMITED ("the
Borrower") of the one part and THE ROYAL BANK OF CANADA ("the Bank") of the
other part was made by the Borrower and the Bank on the 6th day of December
1984.
2. I was present and did see JEFFREY M. PARKER and PHILLIP LUSTIG Director and
Secretary respectively of the Borrower affix the Common Seal of the
Borrower to the said Deed and sign the same as and for the proper act and
deed of the Borrower and execute acknowledge and deliver the said Deed for
the purposes therein mentioned on the 6th day of December 1984 between the
hours of 10.00 and 12.00 in the fore noon at George Town, Grand Cayman,
Cayman Islands.
3. The Borrower has its registered office at George Town, Grand Cayman, Cayman
Islands and is a company duly incorporated and existing under the Laws of
the Cayman Islands.
4. That the name PETER D. RIBBINS subscribed as a witness attesting to the due
execution of the said Deed by the Borrower is of the proper handwriting of
me this deponent and I reside at George Town, Grand Cayman and am a
businessman.
SWORN at George Town, Grand Cayman )
this 6th day of December )
1984, before me, )
)
/s/ ) /s/
- - - - - - - ----------------------------------- ---------------------------------
Justice of the Peace
[PUBLIC RECORD OFFICE
CAYMAN ISLANDS STAMP]
<PAGE> 4
-4-
PROBATE
I, of George Town, Grand Cayman, make oath and
say:-
1. The foregoing Deed made between CAYMAN WATER COMPANY LIMITED ("the
Borrower") of the one part and THE ROYAL BANK OF CANADA ("the Bank") of the
other part was made by the Borrower and the Bank on the 6 day of December,
1984.
2. I was present and did see Vivian Greengrass the duly authorised attorney
for and on behalf of the Bank sign, seal and as and for his proper act and
deed execute acknowledge and deliver the said Deed for the purposes
therein mentioned on the 20 day of December 1984 between the hours of 2:30
and 5:00 in the afternoon at George Town, Grand Cayman, Cayman Islands.
3. The Bank is a banking corporation existing under the Laws of Canada and
having a branch office in George Town, Grand Cayman, Cayman Islands.
4. That the name subscribed as a witness attesting to
the due execution of the said Deed by the Bank is of the proper
handwriting of me this deponent and I reside at South Sound Grand Cayman
and am an Attorney-at-Law.
SWORN at George Town, Grand Cayman )
Cayman Islands, this 3rd day of )
January 1984, before me:- )
) -----------------------
)
- - - - - - - ------------------------------------ )
Justice of the Peace
[PUBLIC RECORD OFFICE CAYMAN ISLANDS STAMP]
<PAGE> 1
Exhibit 10.42
THIS FOURTH DEED is made the 31st day of August, 1989
BETWEEN: CAYMAN WATER COMPANY LIMITED, a Company incorporated and existing
under the laws of the Cayman Islands with registered office in George
Town, Grand Cayman, Cayman Islands (hereinafter called "the Borrower")
OF THE ONE PART
AND: THE ROYAL BANK OF CANADA of P.O. Box 245, George Town, Grand Cayman,
Cayman Islands (hereinafter called "the Bank") OF THE OTHER PART
WHEREAS:-
1. This Deed is made supplemental to the Debenture ("the Debenture") dated 1st
June, 1979 between the Borrower, the Bank, Philip H. Lustig ("Lustig") and
Cayman Public Utilities Ltd. ("CPU") as supplemented by Deed dated 30th
April, 1981 between the Borrower and the Bank and the Second Deed dated
10th March, 1983 between the Borrower and the Bank and the Third Deed dated
6th December, 1984 between the Borrower and the Bank and to all collateral
security documents and agreements executed pursuant thereto (hereinafter
together called "the Bank's security").
2. The Bank has agreed to extend to the Borrower additional credit facilities
to the extent of Seven Hundred and Seventy-six Thousand Two Hundred and
Thirty-nine United States Dollars (US$776,239.00) or its equivalent in
Cayman Islands Dollars upon having the same security and manner hereinafter
appearing.
NOW THIS DEED WITNESSETH as follows:-
1. In consideration of the said agreement the Borrower and the Bank hereby
agree that the Debenture shall hereafter stand as security for all sums
owing to the Bank from time to time up to a maximum of One Million One
Hundred Twenty-one Thousand Eight Hundred Sixty-five Cayman Islands Dollars
and Eighty cents (CI$1,121,865.80) (or its equivalent in United States
Dollars) together with interest thereon provided that the Bank shall have
the right in its sole discretion to determine what proportion of the
additional credit facilities shall be advanced in Cayman Islands Dollars
and what proportion in United States Dollars.
2. The rate of interest payable on so much of the principal sum
1
[PUBLIC RECORD OFFICE CAYMAN ISLANDS STAMP]
<PAGE> 2
as is payable in Cayman Islands Dollars shall be at the Bank's Prime
Lending Rate for Cayman Islands Dollars or such other rate as the Bank may
from time to time advise the Borrower and on so much thereof as is payable
in United States Dollars at a rate of two percent (2%) per annum above the
Bank's Prime Lending Rate for United States Dollars or such other rate as
the Bank may from time to time advise the Borrower.
3. Insofar as not hereby expressly waived or varied the Borrower and the Bank
hereby confirm the terms and provisions of the Debenture.
IN WITNESS WHEREOF the parties hereto have executed this Deed the day and year
first above written.
THE COMMON SEAL OF CAYMAN CAYMAN WATER COMPANY LIMITED
WATER COMPANY LIMITED was hereunto
affixed by /s/ Jeffrey Parker
and by -----------------------------
in the presence of:- DIRECTOR
/s/ illegible
-----------------------------
SECRETARY
- - - - - - - -------------------------
WITNESS
SIGNED SEALED AND DELIVERED BY THE ROYAL BANK OF CANADA
D. J. STEWART the duly
authorised Attorney for the Bank /s/ illegible
in the presence of:- -----------------------------
ATTORNEY FOR THE BANK
- - - - - - - -------------------------
WITNESS
[PUBLIC RECORD OFFICE CAYMAN ISLANDS STAMP]
2
<PAGE> 3
I, H.C. CHISHOLM of George Town, Grand Cayman, Cayman Islands make oath and say
as follows:-
1. The foregoing Deed made between Cayman Water Company Limited ("the
Borrower") of the one part and The Royal Bank of Canada ("the Bank") of the
other part was made by the Borrower and the Bank on the ___ day of August,
1989.
2. I was present and did see D.J. Stewart, the duly authorised Attorney for
and on behalf of the Bank sign seal and as for his proper act and did
execute acknowledge and deliver the said Deed for the purposes therein
mentioned on the 19th day of October, 1989 between the hours of 10 a.m. and
11 a.m. in the forenoon at George Town, Grand Cayman, Cayman Islands.
3. The Bank is a banking corporation existing under the Laws of the Canada and
having a branch office in George Town, Grand Cayman, Cayman Islands.
4. That the name H.C. CHISHOLM subscribed as a witness attesting to the due
execution of the said Deed by the Borrower is of the proper handwriting of
me this deponent and I reside at George Town, Grand Cayman and am a Banker.
------------------------
SWORN AT George Town, Grand Cayman, Cayman Islands this 19th day of October,
1989 before me:-
------------------------
[PUBLIC RECORD OFFICE CAYMAN ISLANDS STAMP]
3
<PAGE> 4
I, Royce M. Scott of George Town, Grand Cayman, Cayman Islands make oath and
say as follows:--
1. The foregoing Deed made between Cayman Water Company Limited ("the
Borrower") of the one part and The Royal Bank of Canada ("the Bank")
of the other part was made by the Borrower and the Bank on the 31st day of
August, 1989.
2. I was present and did see Jeffrey M. Parker and Margaret Director
and Secretary respectively of the Borrower affix the Common Seal of the
Borrower to the said Deed and sign the same as and for the proper act and
deed of the Borrower and execute acknowledge and deliver the said Deed for
the purposes therein mentioned on the 11th day of October, 1989 between
the hours of 8:00 and 9:00 in the forenoon at George Town, Grand Cayman,
Cayman Islands.
3. The Borrower has its registered office at George Town, Grand Cayman, Cayman
Islands and is a Company duly incorporated and existing under the Laws of
the Cayman Islands.
4. That the name Royce M. Scott, subscribed as a witness attesting to the due
execution of the said Deed by the Borrower is of the proper handwriting of
me this deponent and I reside at #28 Mariner's Cove, Grand Cayman and am an
Accountant.
/s/
------------------------------
SWORN AT George Town, Grand Cayman, Cayman Islands this 11th day of August,
1989 before me:--
/s/
------------------------------
[PUBLIC RECORDER STAMP]
[PUBLIC RECORD OFFICE CAYMAN ISLANDS STAMP]
4
<PAGE> 1
Exhibit 10.43
THIS FIFTH DEED is made the 16 day of June, 1992.
BETWEEN: CAYMAN WATER COMPANY LIMITED, a Company incorporated and existing
under the Laws of the Cayman Islands and having its registered office
situate at George Town, Grand Cayman (hereinafter called "the
Borrower") OF THE ONE PART
AND: THE ROYAL BANK OF CANADA of P. O. Box 245, George Town, Grand Cayman
(hereinafter called "Bank") OF THE OTHER PART
WHEREAS:
1. This Deed is made supplemental to a Debenture ("the Debenture") dated the
1st day of June, 1979 between The Borrower, the Bank, Philip H. Lustig
("Lustig") and Cayman Public Utilities Ltd. ("CPU") as supplemented and
amended by Deed dated 30th April, 1981 between the Borrower and the Bank
and the Second Deed dated 10th March, 1983 between the Borrower and the
Bank and the Third Deed dated 6th December, 1984 between the Borrower and
the Bank and the Fourth Deed dated the 31st August, 1989 between the
Borrower and the Bank and to all collateral security documents and
agreements executed pursuant thereto (hereinafter together called "the
Bank's Security").
2. The Borrower currently has authorised credit facilities up to a maximum of
CI$1,121,865.80 and the Bank has agreed to extend to the Borrower in place
thereof separate credit facilities as set out below:
NOW THIS DEED OF ASSIGNMENT WITNESSETH as follows:-
1. In consideration of the said agreement the Borrower and the Bank hereby
agree that the Debenture shall hereafter stand as security for all sums
owing to the Bank from time to time up to a maximum of the aggregate of One
Million One Hundred and Six Thousand Two Hundred and Fifteen United States
Dollars (US$1,106,215.00) plus Ten Thousand Cayman Islands Dollars
(CI$10,000.00) ("the Principal Sum") together with interest thereon instead
of the previously secured facilities.
2. The Principal Sum shall be established by way of three accounts namely:-
[PUBLIC RECORD OFFICE CAYMAN ISLANDS STAMP]
<PAGE> 2
(a) a United States Dollar loan account in the sum of US$1,000,000.00
repayable on demand but prior to demand by way of payments of interest
only until May, 1994 and thereafter repayable by way of monthly
payment of US$22,000.00 inclusive of interest and repayable thereby in
full on the 30th May, 1999. The terms shall be subject to call and
annual review by the Bank.
(b) An overdraft facility in the amount of CI$10,000.00 subject to the
Bank's policies and regulations with regard to overdrafts in force
from time to time.
(c) A standby letter of credit for one year in the sum of US$106,215.00
with an automatic renewal clause to 31st March, 1995 but providing
that cancellation must be requested in writing 30 days prior to any
annual expiry date but otherwise subject to the Bank's conditions and
regulations with regard to letters of credit in force from time to
time.
3. The rate of interest payable on so much of the Principal Sum as is payable
in Cayman Islands Dollars shall be at the Bank's Prime Lending Rate for
Cayman Islands Dollars plus two percent (2%) per annum or such other rate
as the Bank may from time to time advise the Borrower and on so much
thereof as is payable in United States Dollars at a rate of two percent
(2%) per annum above the Bank's Prime Lending Rate for United States
Dollars or such other rate as the Bank may from time to time advise the
Borrower.
4. For the avoidance of any doubt whatsoever the Bank and the Borrower hereby
reconfirm the provisions of Clause 14 (i) of the Debenture regarding
insurance and Clause 14 (xi) of the Debenture regarding the covenant of
the Borrower not to declare dividends without the written consent of the
Bank.
5. Insofar as not hereby expressly waived or varied the Borrower and the Bank
hereby confirm the terms and provisions of the Bank's Security.
[PUBLIC RECORD OFFICE CAYMAN ISLANDS STAMP]
<PAGE> 3
IN WITNESS WHEREOF the parties hereto have executed this Deed the day and year
first above written.
THE COMMON SEAL OF CAYMAN CAYMAN WATER COMPANY LIMITED
WATER COMPANY LIMITED was /s/ Jeffrey Parker
hereunto affixed by ----------------------------
Jeffrey M. Parker DIRECTOR
and by Peter D. Robbins /s/ Peter Ribbins
in the presence of: ----------------------------
DIRECTOR
- - - - - - - ------------------------------
WITNESS
SIGNED SEALED AND DELIVERED BY THE ROYAL BANK OF CANADA
D.J. STEWART the duly
authorised Attorney for the
Bank /s/ D.J. Stewart
----------------------------
ATTORNEY FOR THE BANK
in the presence of:-
- - - - - - - ------------------------------
WITNESS
[PUBLIC RECORDER STAMP]
[PUBLIC RECORD OFFICE CAYMAN ISLANDS STAMP]
<PAGE> 4
I, Harry Chisholm of George Town, Grand Cayman, Cayman Islands make oath and
say as follows:-
1. The foregoing Deed made between Cayman Water Company Limited ("the
Borrower") of the one part and The Royal Bank of Canada ("the Bank") of the
other part was made by the Borrower and the Bank on the 16th day of June,
1992.
2. I was present and did see D.J. Stewart, the duly authorised Attorney for
and on behalf of the Bank sign seal and as for his proper act and did
execute acknowledge and deliver the said Deed for the purposes therein
mentioned on the 16th day of June, 1992 between the hours of 10:00 a.m. and
10:30 a.m. in the forenoon at George Town, Grand Cayman.
3. The Bank is a banking corporation existing under the Laws of Canada and
having a branch office in George Town, Grand Cayman, Cayman Islands.
4. That the name Harry Chisholm, subscribed as a witness attesting to the due
execution of the said Deed by the Borrower is of the proper handwriting of
me this deponent and I reside at North Side, Grand Cayman and am a Snr.
Assistant Bank Manager.
/s/
-----------------------------
SWORN AT George Town, Grand Cayman, Cayman Islands this 16th day of June, 1992
before me:-
/s/
-----------------------------
[Public Record Office Cayman Islands Stamp]
<PAGE> 5
I, Margaret L. Julier of George Town, Grand Cayman, Cayman Islands make oath
and say as follows:-
1. The foregoing Deed made between Cayman Water Company Limited ("the
Borrower") of the one part and The Royal Bank of Canada ("the Bank") of the
other part was made by the Borrower and the Bank on the 16th day of June,
1992.
2. I was present and did see Jeffrey M. Parker and Peter D. Ribbins Directors
respectively of the Borrower affix the Common Seal of the Borrower to the
said Deed and sign the same as and for the proper act and deed of the
Borrower and execute acknowledge and deliver the said Deed for the purposes
therein mentioned on the 16th day of June , 1992 between the hours of
2:00 p.m. and 3:00 p.m. in the forenoon at George Town, Grand Cayman,
Cayman Islands.
3. The Borrower has its registered office at George Town, Grand Cayman, Cayman
Islands and is a Company duly incorporated and existing under the Laws of
Cayman Islands.
4. That the name Margaret L. Julier, subscribed as a witness attesting to the
due execution of the said Deed by the Borrower is of the proper handwriting
of me this deponent and I reside at Snug Harbour, Grand Cayman and am a
Office Manager.
------------------------
SWORN AT George Town, Grand Cayman, Cayman Islands this day of , 1992
before me:-
-----------------------
[3 CAYMAN ISLAND GRAPHICS]
[PUBLIC RECORD OFFICE CAYMAN ISLANDS STAMP]
<PAGE> 1
Exhibit 10.44
THIS VARIATION OF DEBENTURE is made the 11th day of October 1999.
(A Variation of the Collateral Charge is registered over West Bay Beach North
Block 11D Parcel 8)
BETWEEN:
(1) CONSOLIDATED WATER CO. LTD., a company incorporated under the laws of the
Cayman Islands and having its registered office at the offices of
Consolidated Water Co. Ltd., Trafalgar Place, West Bay Road, P.O. 1114,
Grand Cayman (hereinafter called "the Borrower") of the ONE PART; and
(2) ROYAL BANK OF CANADA., a banking corporation licensed to carry on business
in the Cayman Islands with offices at P.O. Box 245, George Town, Grand
Cayman (hereinafter called "the Bank") of the OTHER PART,
WHEREAS:
(1) The Bank and the Borrower entered into a form of Debenture dated the 1st
day of June 1979 (the "Debenture") to secure the loan of CI$200,000.00
borrowed from the Bank. A Supplemental Deed was entered into on the 30th
day of April 1981 for an additional borrowing of CI275,000.00. A second
Supplemental Deed to the Debenture was entered into on the 10th day of
March 1983 for an additional borrowing. A third Supplemental Deed to the
Debenture was entered into on the 6th day of December 1984 for additional
borrowing. A fourth Supplemental Deed to the Debenture was entered into on
the 31st day of August 1989;
(2) The Bank and the Borrower have now agreed to enter into this Variation of
Debenture to secure a further borrowing from the Bank of US$1,394,000.00 so
that the total amount of the loan to the borrower shall be US$2,500,000.00;
(3) The Bank and the Borrower have now agreed that the interest rate shall be
varied to the Bank's US$ LIBOR plus 1.5%;
(4) The Bank and the Borrower have now agreed that the repayment of the loan
shall be revolving
NOW THIS DEED WITNESSES as follows:
1. Words and terms defined in this Variation of Debenture shall bear the same
meaning herein as in the Debenture unless expressly provided to the
contrary.
2. In consolidation of the said agreement the Borrower and the Bank hereby
agree the Debenture
[PUBLIC RECORD OFFICE CAYMAN ISLANDS STAMP]
<PAGE> 2
2
and the Variation of Debenture shall hereafter stand as security for all
sums owing to the Bank from time to time up to a maximum of
US$2,500,000.00 (Two Million, Five Hundred Thousand) together with
interest thereon.
3. The rate of interest payable shall be the Bank's US$ LIBOR plus 1.5%;
4. The repayment of the loan by the Borrower shall be revolving;
5. The Bank hereby consents to the registration of a Variation of Collateral
Charge over property being held as collateral security to the loan and
being mentioned in the Schedule to this Variation of Debenture.
6. All other terms and conditions of the Debenture shall remain in full force
and effect.
7. This Variation of Debenture shall be governed by and interpreted in
accordance with Cayman Islands Law.
IN WITNESS WHEREOF the parties have executed this Variation of Debenture as a
deed the day and year first before written.
SCHEDULE
All that parcel of land on Grand Cayman comprised within Registration Section
West Bay Beach North Block 11D Parcel 8.
THE COMMON SEAL of ) /s/ Peter Ribbins
CONSOLIDATED WATER CO. LTD. ) ------------------------
was hereunto affixed by ) Director
and by ) /s/ illegible
in the presence of: ) -------------------------
Secretary
- - - - - - - --------------------------------
Witness
THE COMMON SEAL OF ) ROYAL BANK OF CANADA
ROYAL BANK OF CANADA ) GEORGE TOWN, GRAND CAYMAN
was hereunto affixed by ) Director
and by )
in the presence of: ) /s/ illegible
---------------------------
MANAGER
Asst. Secretary
- - - - - - - ---------------------------
Witness
[PUBLIC RECORDER STAMP]
[PUBLIC RECORD OFFICE CAYMAN ISLANDS STAMP]
<PAGE> 1
Exhibit 10.45
R.12870
S.D.$10.00
FORM R.L.9. CAYMAN ISLANDS 2733/79
THE REGISTERED LAND LAW, 1971
SECOND
COLLATERAL CHARGE [CAYMAN ISLANDS
GOVERNMENT
JUN 2779 STAMP 10.00
DUTY
TREASURY
STAMP]
<TABLE>
<CAPTION>
REGISTRATION SECTION BLOCK PARCEL
WEST BAY BEACH NORTH 11D 8
- - - - - - - --------------------- ----- ------
<S> <C> <C>
I/WE, CAYMAN WATER COMPANY LIMITED, a Cayman Islands company
Grand Cayman, Cayman Islands ("the Chargor")
</TABLE>
I, THE REGISTRAR OF LANDS IN THE CAYMAN ISLANDS HEREBY
CERTIFY THAT THIS DOCUMENT WAS RECEIVED BY FOR
REGISTRATION ON THIS 27 DAY OF JUNE, 1979 AND THAT STAMP DULY
BY /TREASURY AT C.I. $10.00 ] LAND REGISTRY AT C.I. $10.00
TO HAVE BEEN PAID.
/s/ [signature illegible]
-------------------------
Registrar of Lands
HEREBY CHARGE our interest in the above mentioned title by way of collateral and
additional security to the Debenture ("the Debenture" to which this collateral
charge is supplemental) of even date herewith between the Chargor of the first
part, The Royal Bank of Canada ("the Bank") of the second part, Philip H.
Lustig of the third part and Cayman Public Utilities Ltd., of the fourth part
to secure the payment to the Bank
of P.O. Box 245, Grand Cayman, Cayman Islands
of the principal sum of Two Hundred Thousand Cayman Islands Dollars
(CI$200,000.00) as secured by the Debenture
with interest at the rate of and
payable as provided in the Debenture, subject to section 67 of the above law,
unless negatived, modified or added to by the attached Deed and the debenture.
The principal sum shall be repaid together with any interest then due, in
accordance with the attached Deed and the Debenture
And I/WE the above named Chargor hereby acknowledge that we understand the
effect of section 72 of the Registered Land Law, 1971.
Dated this first day of June 1979
[REGISTRAR OF LANDS
CAYMAN ISLANDS
SEAL]
[REGISTERED
THIS 3RD DAY OF JULY, 1979
/s/
- - - - - - - -------------------------
REGISTRAR OF LANDS
CAYMAN ISLANDS
STAMP]
[LANDS AND SURVEY REGISTER
JUL 10 1991
CAYMAN ISLANDS
SEAL]
CAYMAN WATER COMPANY LIMITED
Signed by the Chargor Per: /s/ - Secretary
------------------------------------------------------
in the presence of:- Per: /s/ - Director
------------------------------------------------------
[signature illegible] THE ROYAL BANK OF CANADA
Signed by the Chargee Per: /s/ - Attorney for the Bank
------------------------------------------------------
in the presence of:-
<PAGE> 2
The Registrar of Lands is hereby requested:-
(a) to register this Charge in favour of the Bank;
(b) to note on the register that this Charge contains an agreement by the
Chargor with the Bank that the Chargor will not lease or sub-lease or agree
to lease or sub-lease or accept surrenders of leases or sub-leases or
transfer the property the subject of this Charge or any part thereof
without the written consent of the Bank;
(c) to note on the register that this Charge gives to the Bank the right to
consolidate this Charge with any other charge;
(d) to note on the register that this Charge contains an agreement by the
Chargor with the Bank that it will not create or purport or attempt to
create any charge or mortgage which by virtue of any law or regulation will
rank pari passu with or in priority to this security or second or
subsidiary to this security without the written consent of the Bank;
(e) to note on the register that this Charge is a collateral and additional
security to the Debenture; and
(f) that this Charge contains an agreement by Philip H. Lustig with the Bank
whereby the said Philip H. Lustig agrees that the Charge presently
registered in his name in the encumbrances section of the register relating
to the above mentioned title shall rank pari passu with this Charge to the
intent that the Bank shall henceforth rank as pari passu First Chargee with
the said Philip H. Lustig.
[Public Record Office Cayman Islands Stamp]
[Registrar of Lands Cayman Islands Stamp]
<PAGE> 1
Exhibit 10.46
THIS DEED is made the first day of June 1979
BETWEEN: CAYMAN WATER COMPANY LIMITED
a company incorporated and existing
under the laws of the Cayman Islands
with registered office in George Town,
Grand Cayman, Cayman Islands
(hereinafter called "the Chargor")
OF THE FIRST PART
AND: THE ROYAL BANK OF CANADA
of P.O. Box 245, George Town,
Grand Cayman, Cayman Islands
(hereinafter called "the Bank")
OF THE SECOND PART
AND: PHILIP H. LUSTIG
of P.O. Box
Grand Cayman, Cayman Islands
(hereinafter called "Lustig")
OF THE THIRD PART
W H E R E A S:-
This Deed is made supplemental to the Charge made pursuant to the Registered
Land Law 1971 against Parcel 8 of Block 11D in the West Bay Beach North
Registration Section attached hereto and to the Debenture (hereinafter called
"the Debenture") therein referred to and the expression "this Charge" shall
mean and include the said Charge the Debenture and this Deed.
NOW THIS DEED WITNESSETH as follows:-
A. It is hereby agreed and the Chargor and the Bank hereby respectively
covenant and agree with each other as follows:-
1. That the Chargor will pay to the Bank all sums in respect of
principal or interest and any other monies payable in accordance
with the terms and conditions covenants and agreements contained
herein and in the Debenture.
[PUBLIC RECORD OFFICE CAYMAN ISLANDS STAMP]
[REGISTRAR OF LANDS CAYMAN ISLANDS STAMP]
<PAGE> 2
- 2-
2. Sub-section (d) of Section 67 of the Registered Land Law 1971 (or any
statutory modification or re-enactment thereof for the time being in force
the said Law as aforesaid being hereinafter referred to as "the above
Law") shall not apply to this Charge nor to any instrument of variation
executed pursuant to this Charge and instead thereof the Chargor shall so
long as any money remains owing on this Charge or on the Debenture or any
variation thereof keep the buildings and all the contents for the time
being comprised therein insured in accordance with the provisions of
sub-clause 14(i) of the Debenture such policy or policies of insurance
stating that no payment is to be made to the Chargor thereunder until the
Bank's interests under this Charge and under the Debenture and all
instruments of variation as may have been executed have been discharged
pursuant to Section 80 of the above Law and in default of the Chargor so
insuring the Bank may insure as aforesaid and the premiums payable
therefor may be recovered by the Bank pursuant to Section 67 of the above
Law and the Chargor hereby irrevocably appoints the Bank the agent of the
Chargor for the purpose of receiving all monies under the said policy and
giving a discharge therefor.
3. The Chargor shall punctually pay all premiums payable under the said
policy or policies of insurance and shall produce to the Bank on demand
the receipts for such payments and do everything necessary to maintain the
said policy or policies of insurance in full effect and shall not do
anything whereby the said policy or policies of insurance will or may be
vitiated.
4. Sub-section (f) of Section 67 and sub-section (g) of Section 67 of the
above Law shall not apply to this Charge nor to any instrument of
variation executed pursuant to this Charge and instead thereof the Chargor
shall not during the continuance of this security without prior consent in
writing of the Bank lease or sub-lease or agree
[PUBLIC RECORD OFFICE CAYMAN ISLANDS STAMP]
[REGISTRAR OF LANDS CAYMAN ISLANDS STAMP]
<PAGE> 3
-3-
to lease or sub-lease or accept surrenders of leases or sub-leases or
transfer or otherwise part with the possession of the premises the subject
of this security or any part thereof.
5. The Chargor shall not create or purport or attempt to create any charge or
mortgage which by virtue of any law or regulation will rank pari passu with
or in priority to this security or second or subsidiary to this security in
respect of the premises the subject of this security without first
obtaining the written consent of the Bank.
6. The Chargor shall not without first obtaining the written consent of the
Bank make or permit or suffer to be made any material change or addition
whatsoever in or to the premises the subject of this security or the use
thereof.
7. In the event that the Chargor shall fail to discharge all monies and
liabilities in full pursuant to the terms hereof or of the Debenture or in
the event that the Charger be in breach of any of the Chargor's
covenants or obligations herein or in the Debenture contained whether
express or implied or in the event that the Chargor goes into liquidation
(other than a voluntary liquidation for the purposes of a reconstruction
only the terms of which have been previously approved in writing by the
Bank) or suffers the appointment of a receiver over any part of the
Chargor's assets then in any such event all monies owing to the Bank under
the Debenture or hereunder shall immediately become due and payable and the
provisions of Sections 72 to 75 inclusive of the Registered Land Law 1971
shall apply subject to the modifications hereinafter set forth and the Bank
may also exercise such remedies and powers under the provisions of the
Debenture as it may think fit:-
(i) the power of sale and of appointing a receiver and any other remedies
available to the Bank shall become immediately exercisable without
further notice;
[PUBLIC RECORD OFFICE CAYMAN ISLANDS STAMP]
[REGISTRAR OF LANDS CAYMAN ISLANDS STAMP]
<PAGE> 4
-4-
(ii) in addition to the remedies provided by Section 72 of the above Law the
Bank shall have the right to foreclose or enter into possession of the
charged premises or both in the same circumstances as would allow the Bank
to exercise its power of sale or appoint a receiver;
(iii)in the event that the Bank does appoint a receiver or enter into possession
of the charged premises the Bank shall be entitled to exercise its power of
sale or foreclosure or entry into possession at any time thereafter without
further notice;
(iv) upon the power of sale arising the Bank shall have the right to sell the
charged premises by private treaty as well as by public auction;
(v) a receiver appointed by the Bank shall have such powers in addition to
those act out in the above Law or any other law relating thereto or in the
Debenture as the Bank shall deem necessary (including the right to sell the
charged premises and carry on the Chargor's business) for the proper
enforcement and protection of the Bank's rights hereunder; and
(vi) the remuneration of such receiver may be in such amount and on such basis
whether commission hourly rate or otherwise as the Bank shall agree with
such receiver.
PROVIDED ALWAYS and it is hereby expressly declared and agreed that in any case
where any modification of the above Law (or any other modification provided for
in this Charge) shall require the sanction of the Court the Bank shall have the
right at its option to waive any modification where it is in favour of the Bank
or to seek the sanction of the Court thereto and should the Bank fail to obtain
the sanction of the Court to any particular modification or should the Bank
elect to waive its rights under any modification then the original provisions
of the above Law shall apply without modification.
[PUBLIC RECORD OFFICE CAYMAN ISLANDS STAMP]
[REGISTRAR OF LANDS CAYMAN ISLANDS STAMP]
<PAGE> 5
- 5 -
8. The right contained in Section 82 of the above Law to consolidate charges
is expressly reserved to the Bank.
9. No neglect omission or forebearance on the part of the Bank to take
advantage of or enforce any right arising out of any breach non-observance
or non-performance of any covenant or condition herein or in the Debenture
contained or referred to or by Law implied shall be deemed to operate as a
general waiver of such covenant or condition or the right to take advantage
thereof either original or recurring.
10. The taking of a judgement or judgements on any covenants herein or in the
Debenture contained shall not operate as a merger of the said covenant or
covenants or affect the Bank's right to interest as set forth in the
Debenture.
11. The Chargor shall pay the Bank's (or its lawyers servants or agents) fees
and expenses and disbursements of and in connection with the inspection and
valuation of the property hereby charged the examination of the title
thereto and preparation of this Charge and for the protection and
enforcement from time to time of the Bank's rights hereunder together with
the stamp duty and registration fees now or hereafter payable on this
Charge and any instrument of variation executed pursuant to this Charge.
12. This Charge shall be stamped as a collateral and additional security to
the Debenture.
13. In this Charge:-
(i) Words importing the masculine gender shall include the feminine and
neuter genders and vice versa and words importing the singular number
only shall include the plural number and vice versa and words
importing persons and all reference to persons shall include
corporations and firms;
(ii) If at any time two or more persons are included in the expression
"the Chargor" then covenants entered into or implied herein by or on
the part of the Chargor shall be deemed to be and shall
[PUBLIC RECORD OFFICE CAYMAN ISLANDS STAMP]
[REGISTRAR OF LANDS CAYMAN ISLANDS STAMP]
<PAGE> 6
-6-
be construed as covenants entered into by and binding on such
persons jointly and severally; and
(iii) "the Chargor" shall mean and include the respective personal
representatives and estates of and the permitted successors in
title transferees and assigns of the Chargor and "the Bank"
shall mean and include the successors in title transferees and
assigns of the Bank.
B. Lustig hereby agrees and undertakes that the Charge (hereinafter called
"the Lustig Charge") presently registered in the name of Lustig in the
encumbrances section of the register relating to the property hereby
charged shall rank in point of security pari passu with this Charge and
the Bank and Lustig hereby agree that in the event of a default under this
Charge or under the Lustig Charge all sums collected realised or received
whether pursuant to a sale receivership or otherwise shall be applied as
follows:-
for every dollar the sum of 75 cents to the bank and
25 cents to Lustig.
IN WITNESS WHEREOF the Common Seal of the Chargor was hereunto affixed and this
Deed signed by its duly authorised officers and the duly authorised Attorney
for and on behalf of the Bank and Phillip H. Lustig have hereunto set their
respective hand and seals the day and year first above written.
THE COMMON SEAL OF CAYMAN WATER ) CAYMAN WATER COMPANY LIMITED
)
COMPANY LIMITED was hereunto affixed )
)
by ) Per: /s/ C. Flowers
) --------------- Director
and by )
)
in the presence of:- ) Per: /s/ L. Dowmer
--------------- Director
Witness
[PUBLIC RECORDS OFFICE CAYMAN ISLANDS STAMP]
[REGISTRAR OF LANDS CAYMAN ISLANDS STAMP]
<PAGE> 7
-7-
SIGNED, SEALED and DELIVERED for ) THE ROYAL BANK OF CANADA
)
and on behalf of THE ROYAL BANK )
)
OF CANADA by its duly authorised ) Per: /s/ D. Stewart
) ---------------------------
Attorney, D.J. Stewart, in the ) Attorney for the Bank
)
presence of:- )
/s/ Neil Cavers
- - - - - - - ---------------------
Witness
SIGNED, SEALED and DELIVERED by )
) /s/ Phillip H. Lustig
the said PHILIP H. LUSTIG in ) ----------------------------
) PHILLIP H. LUSTIG
the presence of:- )
- - - - - - - --------------------------
Witness 12.4.79
[PUBLIC RECORD OFFICE CAYMAN ISLANDS STAMP]
[REGISTRAR OF LANDS CAYMAN ISLANDS STAMP]
<PAGE> 8
-8-
PROBATE
BE IT REMEMBERED that on this day of 1979 before me the
undersigned a Notary Public in and for the Cayman Islands personally came and
appeared one an attesting witness to the due execution of the
within Deed who being by me duly sworn made oath and said that he/she was
present and did see the Common Seal of CAYMAN WATER COMPANY LIMITED one of the
parties named in the said Deed affixed to the said Deed by and
by of the said CAYMAN WATER COMPANY LIMITED as and for the
proper act and deed of the said CAYMAN WATER COMPANY LIMITED and did see the
said Director and Secretary execute acknowledge and deliver the said Deed for
the purposes therein mentioned.
- - - - - - - -------------------------------- ----------------------------------
Witness NOTARY PUBLIC in and for the
Cayman Islands.
PROBATE
BE IT REMEMBERED that on this 30th day of May 1979 before me
the undersigned a Notary Public in and for the Cayman Islands personally came
and appeared one Neil Cavers an attesting witness to the
due execution of the within Deed who being by me duly sworn made oath and said
that he was present and did see D.J. Stewart, duly authorised attorney for
and on behalf of the said THE ROYAL BANK OF CANADA one of the parties named in
the said Deed sign seal and as and for the proper act and deed of the said THE
ROYAL BANK OF CANADA execute acknowledge and deliver the said Deed for the
purposes therein mentioned.
/s/ NEIL CAVERS
- - - - - - - -------------------------------- ----------------------------------
Witness Neil Cavers NOTARY PUBLIC in and for the
Cayman Islands.
[PUBLIC RECORD OFFICE CAYMAN ISLANDS STAMP]
[REGISTRAR OF LANDS CAYMAN ISLANDS STAMP]
<PAGE> 9
-9-
PROBATE
-------
BE IT REMEMBERED that on this day of 1979 before me the
undersigned a Notary Public in and for the Cayman Islands personally came and
appeared one an attesting witness to the due
execution of the within Deed who being by me duly sworn made oath and said that
he/she was present and did see PHILIP H. LUSTIG one of the parties named in the
said Deed sign seal and as and for his proper act and deed execute acknowledge
and deliver the said Deed for the purposes therein mentioned.
- - - - - - - -------------------------------- -----------------------------------
Witness NOTARY PUBLIC in and for the
Cayman Islands.
[Public Record Office Cayman Islands Stamp]
[REGISTRAR OF LANDS CAYMAN ISLANDS STAMP]
<PAGE> 1
Exhibit 10.47
CAYMAN ISLANDS
THE REGISTERED LAND LAW 1971
VARIATION OF CHARGE
REGISTRATION SECTION BLOCK PARCEL
West Bay Beach North 11D 8
- - - - - - - -------------------- ----- ------
W H E R E A S : -
- - - - - - - -------------
1. This Instrument is made supplemental to the Charge ("the Charge") between
CAYMAN WATER COMPANY LIMITED ("the Chargor") and THE ROYAL BANK OF CANADA
("the Bank") shown as entry nos. 6 & 7 in the encumbrances section of the
register relating to the above mentioned title and Debenture ("the
Debenture") referred to therein.
2. The Charge and the Debenture were entered into as security for credit
facilities given to the Chargor to a maximum sum of Two Hundred Thousand
Cayman Islands Dollars (CI$200,000.00).
3. The Bank has agreed at the request of the Chargor to extend its credit
facilities to a maximum sum of Four Hundred and Seventy Five Thousand
Cayman Islands Dollars (CI$475,000.00) or its equivalent in United States
Dollars as hereinafter provided and the Chargor has agreed to enter into
this Instrument for the purpose of increasing the sum secured by the
Chargor.
NOW THIS INSTRUMENT WITNESSETH as follows:-
- - - - - - - ------------------------------
1. The Chargor and the Bank hereby agree that with effect from the date hereof
the Charge shall be varied to increase the maximum sum secured thereunder
from Two Hundred Thousand Cayman Islands Dollars (CI$200,000.00) to Four
Hundred and Seventy Five Thousand Cayman Dollars (CI$475,000.00) or its
equivalent in United States Dollars provided that the Bank shall have the
right in its sole discretion to determine what proportion of the increased
credit facilities shall be advanced in Cayman Islands Dollars and what
proportion in United States Dollars.
I, the Registrar of Lands in the Cayman Islands
certify that this document was received by me
REGISTERED for registration on the 12th day of May 1981
THIS 21 DAY OF MAY 1981 and list stamp duty assessed/adjudicated by
me/Treasury at CI$10 and Land Registry dues at
/s/ CI$10 relating thereto have been paid.
- - - - - - - ------------------------
/s/
CAYMAN ISLANDS ----------------------
Registrar of Lands
[REGISTRAR OF LANDS CAYMAN ISLANDS STAMP]
<PAGE> 2
-2-
- - - - - - - - In so far as not hereby expressly waived or varied the parties hereto
hereby confirm the terms and provisions of the Charge.
Dated this 30th day of April 1981.
The Common Seal of CAYMAN ) CAYMAN WATER COMPANY LIMITED
)
WATER COMPANY LIMITED was )
)
hereunto affixed by ) Per: /s/ L. Downer
) -----------------------------
L. Downer and ) Director
)
by J. Parker )
)
In the presence of: )
)
)
/s/ ) Per: /s/ J. Parker
- - - - - - - --------------------------- -----------------------------
Director
Witness Secretary
SIGNED, SEALED AND DELIVERED ) THE ROYAL BANK OF CANADA
)
By D.J. STEWART ***** )
)
the duly authorised Attorney )
)
for and on behalf of THE ROYAL )
)
BANK OF CANADA in the pre- )
)
sence of:-- )
)
)
/s/ Per: /s/ D. Stewart
- - - - - - - --------------------------- -------------------------------
Attorney for
Witness the Bank
[PUBLIC RECORD OFFICE CAYMAN ISLANDS STAMP]
<PAGE> 3
-3-
CERTIFICATE OF IDENTIFICATION
-----------------------------
Cayman Water Company Limited
Name: Per: /s/ L. Downer -- Director
Per: J. Parker -- Secretary
-----------------------------------------------
I HEREBY CERTIFY that the above named persons appeared before me on the 30th day
of April 1981
being known to me acknowledged the above signature or mark to be
theirs and that they had freely and voluntarily executed this instrument and
understood its contents.
/s/
---------------------------------------
Signature and designation of the
person certifying
CERTIFICATE OF IDENTIFICATION
-----------------------------
The Royal Bank of Canada
Name: Per: D.J. Stewart -- Attorney for the Bank
----------------------------------------------------------
I HEREBY CERTIFY that the above named person appeared before me on the 30th day
of April 1981 and being known to me acknowledged the above signature or mark to
be his and that he had freely and voluntarily executed this instrument and
understood its contents.
/s/
---------------------------------------
Signature and designation of the
person certifying
[REGISTRAR OF LANDS CAYMAN ISLANDS STAMP]
<PAGE> 1
Exhibit 10.48
FORM RL9 INSTRUMENT NO.
---------------
---------------
CAYMAN ISLANDS
THE REGISTERED LAND LAW (1995 REVISION)
THE REGISTERED LAND RULES (REVISED)
THIRD SCHEDULE
COLLATERAL CHARGE TO A VARIATION OF DEBENTURE
DATED 11TH OF OCTOBER 1999,
REGISTRATION SECTION BLOCK PARCEL
WEST BAY BEACH NORTH 11D 8
- - - - - - - -------------------- ----- ------
We, CONSOLIDATED WATER CO. LTD.
(hereinafter called "the Chargor")
HEREBY CHARGE my interest in the above mentioned title
(hereinafter called "the Charged Property")
- - - - - - - -------------------------
to secure the payment
to ROYAL BANK OF CANADA
of P.O. BOX 245, GEORGE TOWN, GRAND CAYMAN
(hereinafter called "the Chargee")
of the principal sum of US$2,500,000.00
with interest at the rate as set out in the attached Schedule,
payable as set within the attached schedule, subject to Section 67 of the above
Law, save as negatived, modified or added to, in the manner as set out in the
attached Schedule. The Chargee reserves the right to tack and/or consolidate
Charges as set out in the attached Schedule.
The principal sum shall be repaid on demand together with any interest or
any other monies then due in accordance with the attached Schedule.
And I the above named Chargor hereby acknowledge that I understand the
effect of Section 72 of the Registered Land Law, (1995 Revision).
Dated this 11th day of October 1999
Signed by the Chargor
-------------------------------------------------------
CONSOLIDATED WATER CO. LTD. Director
in the presence of
-------------------------------------------------------
Secretary
Signed by the Chargee -------------------------------------------------------
ROYAL BANK OF CANADA
in the presence of: - -------------------------------------------------------
MANAGER
- - - - - - - --------------------------------------------------------------------------------
FOR OFFICIAL USE ONLY
I, the Registrar of Lands in the Cayman Islands REGISTERED
hereby certify that this document was received by THIS 15 DAY OF DEC 1999
me for registration on the 14 day of Dec 1999 and
that stamp duly assessed/adjudicated by me/Treasury
at C.I.$30.00 and Land Registry fees at C.I.$50.00
relating thereto have been paid. ------------------
REGISTRAR OF LANDS
------------------ CAYMAN ISLANDS
REGISTRAR OF LANDS
<PAGE> 2
THE REGISTRAR OF LANDS IS HEREBY REQUESTED:-
(a) to register this Charge in favour of the Chargee,
(b) to note on the register that the attached Schedule contains an agreement by
the Chargor with the Chargee that the Chargor will not without first
obtaining the prior written consent of the Chargee lease or sub-lease or
agree to lease or sub-lease or accept surrenders of leases or sub-leases or
transfer or otherwise part with the possession of the Charged Premises
or any part thereof,
(c) to note on the register that the right to tack and rank in priority to any
subsequent charge is expressly reserved to the Chargee,
(d) to note on the register that the attached Schedule reserves to the Chargee
the right to consolidate this Charge with any other charge,
(e) to note on the register that the attached Schedule contains an agreement by
the Chargor with the Chargee that the Chargor will not without first
obtaining the prior written consent of the Chargee create or purport or
attempt to create any charge incumbrance or mortgage which by virtue of any
law or regulation will rank pari passu with or in priority to this Charge
or second or subsidiary to this Charge.
1
<PAGE> 3
THE SCHEDULE
within referred to
It is hereby further agreed and the Chargor and the Chargee hereby respectively
covenant with each other as follows:-
1. (a) That the Chargor shall repay to the Chargee all Sums in respect of
Principal and/or interest and any other monies payable in accordance
with the terms and conditions, covenants and agreements contained
herein and in the Debenture and subsequent Supplemental Debentures
and Variation of Debenture and Commitment letter;
(b) The rate of interest payable hereunder shall be such rate as is
ascertained by the Chargee (as well after as before any judgment) to
be 1 1/2% above US$LIBOR. The interest rate shall be ascertained by
the Chargee on the date hereof and shall be recalculated periodically
in line with variations in the general level of interest rates until
the Principal Sum and interest thereon or on the balance thereof
outstanding from time to time and all other sums payable hereunder
shall have been paid to the Chargee PROVIDED THAT if the date for
calculation of interest hereunder shall fall on a day which is not a
business day such calculation shall be made on the next succeeding
business day and for the purposes of this sub-clause the words
"business day" shall mean a day when banks are open for business in
the Cayman Islands and New York City, U.S.A.
(c) The Chargor shall be at liberty at any time during the continuance of
this security to make repayment of any part of the Principal Sum which
will be accepted by the Chargee provided that any such repayment of
part must be of at least One Thousand Cayman Islands Dollars or a
multiple thereof and provided that any such repayment of part must be
made on a monthly instalment date hereinbefore mentioned and upon such
additional payment being made principal and interest shall continue to
be payable at a rate not less than provided for in sub-clause 1(a)
hereof.
(d) The Chargor shall be at liberty at any time after the first
anniversary of the date of this security on paying to the Chargee
three (3) months' interest to repay to the Chargee on any monthly
instalment dates hereinbefore mentioned the whole of the remaining
balance of the Principal Sum and interest and any other monies due at
the date of repayment as notified in writing by the Chargee to the
Chargor.
2. (a) If the Chargor shall repay to the Chargee the Principal Sum and
interest thereon by the instalments and at the times and in manner
hereinbefore provided within seven (7) days after the dates on which
the same are hereinbefore made payable and if the Chargor shall also
perform and observe all the covenants conditions and stipulations
herein continued or implied and on the Chargor's part to be performed
and observed other than the covenants for payment of the said
instalments then the Chargee shall accept such repayments of principal
and interest by the said instalments as aforesaid and the Chargee will
not take steps to enforce the payment of the Principal Sum and
interest or any part thereof.
(b) Provided always and it is hereby agreed that upon payment to the
Chargee of the Principal Sum and interest and all other monies payable
hereunder as notified in writing by the Chargee to the Chargor the
Chargee will at any time thereafter upon reasonable notice and upon
the request and at the cost of the Chargor discharge this Charge.
3. Sub-section (c) of Section 67 of the Registered Land Law (1995 Revision)
(hereinafter called "the above Law") (and sub-section (j) thereof only so
far as it relates to the said sub-section (c)) shall not apply to this
Charge nor to any instrument of variation executed pursuant to this
2
<PAGE> 4
Charge and instead thereof the Chargor shall keep or cause to be kept the
Charged Premises and all such buildings or erections as may become for the
time being subject hereto in good and substantial repair and condition and
permit the Chargee and the agents of the Chargee at all reasonable times
during the day time and without any further consent to enter into and upon
the Charged Premises and inspect the same and view the state thereof and
upon receipt of notice in writing from the Chargee shall immediately remedy
restore repair amend and make good all such defects decays wants of
reparation amendments and upkeep of the said buildings and erections and
the gates walls and fences on the Charged Premises as the Chargee may
require and if the Chargor shall neglect to do so that the Chargee may
enter upon the Charged Premises with or without workmen or others from
time to time in order to repair and keep in repair the same and without
thereby becoming liable as a Chargee in possession and that the expenses of
so doing shall be repaid by the Chargor to the Chargee on demand and in the
meantime shall be added to the Principal Sum and bear interest accordingly.
4. Sub-section (d) of Section 67 of the above Law (and sub-section (j) thereof
only so far as it relates to the said sub-section (d)) shall not apply to
this Charge nor to any instrument of variation executed pursuant to this
Charge and instead thereof the Chargor shall so long as any money shall
remain owing on the security of this Charge or any variation thereof
insure and keep insured in their full insurable value any buildings or
erections from time to time erected or in the course of erection on the
Charged Premises with an insurance office of repute approved from time to
time by the Chargee and against riot strike public liabilities fire
lightning flood earthquake volcanic eruption hurricane cyclone tornado
windstorm and any such other hazards and risks as the Chargee may from time
to time require AND will punctually pay every sum from time to time payable
for keeping on foot every such insurance or within seven (7) days after the
first day upon which it becomes payable and will cause a note of this
Chargee's interest hereunder to be endorsed on such insurance policy and
will on demand deliver to the Chargee the policy or policies of such
insurance duly endorsed as aforesaid or other proper evidence of the
subsistence thereof and also on demand deliver to the Chargee the receipt
for or other sufficient evidence of payment of every sum payable as
aforesaid AND that if the Chargor shall make default in any of the above
matters the Chargee may insure and keep insured all or any of the said
buildings in manner aforesaid and that the expense of so doing shall be
paid by the Chargor to the Chargee on demand and in the meantime shall be
added to the Principal Sum hereby secured and bear interest accordingly AND
it is hereby agreed and declared that all monies received under or by
virtue of any insurance as aforesaid whether received by the Chargor the
Chargee or any receiver appointed by the Chargee (notwithstanding the
provisions of Section 73(7) of the above Law) shall at the option of the
Chargee either be forthwith applied in or towards substantially rebuilding
reinstating or repairing the buildings or erections destroyed or damaged or
in or towards payment of the monies for the time being secured by these
presents including any premiums paid under the aforesaid power.
5. The Chargor shall on the date hereof effect an insurance policy in respect
of damage to the charged premises in a sum at least equal to the Principal
Sum and interest and any other sums owing or outstanding upon the security
of this Charge with an insurance company approved by the Chargee.
6. Sub-sections (f) and (g) of Section 67 of the above Law shall not apply to
this Charge nor to any instrument of variation executed pursuant to this
Charge and instead thereof the Chargor shall not during the continuance of
this Charge without first obtaining the prior written consent of the
Chargee lease or sub-lease or agree to lease or sub-lease or accept
surrenders of leases or sub-leases or transfer or otherwise part with the
possession of the charged premises or any part thereof.
7. The right contained in Section 82 of the above Law to consolidate this
Charge with any other charge is expressly reserved to the Chargee and the
right to tack and rank in priority to any subsequent charge as contained in
Section 81 of the above Law in respect of further advances made to the
Chargor is also expressly reserved to the Chargee.
3
[PUBLIC RECORD OFFICE CAYMAN ISLANDS STAMP]
<PAGE> 5
8. The Chargor shall not create or purport or attempt to create any charge
incumbrance or mortgage which by virtue of any law or regulation will rank
pari passu with or in priority to this Charge or second or subsidiary to
this Charge to act in any way which shall have the effect of diminishing or
decreasing the value of the security of this Charge without first obtaining
the prior written consent of the Chargee.
9. The Chargor shall not without the prior written consent of the Chargee make
or permit or suffer to be made any material change to or addition
whatsoever in or to the Charged Premises or the use thereof.
10. The Chargor shall pay all reasonable lawyers' costs and other costs and
expenses that may be incurred by the Chargee of and incidental to the
preparation completion stamping and registration of this Charge or any
variation hereto and the protection and enforcement from time to time of
the Chargee's rights hereunder.
11. The Chargor covenants that the Chargor will on demand both before and after
the security constituted hereby has become enforceable at the Chargor's
own cost and expense during the continuance of this Charge do and execute
or cause to be done and executed all such instruments acts deeds and things
to perfect this security and to preserve and protect the rights and
privileges of the Chargee granted by this Charge or by operation of law and
to this end the Chargor hereby undertakes and agrees on demand to execute
cause to be verified and delivered to the Chargee a power of attorney in
form required by the Chargee in favour of the Chargee to enable the Chargee
to register the same in the register of powers of attorney at the expense
of the Chargor or with the consent of the Registrar of Lands to file a copy
thereof certified by the Registrar of Lands in the file of powers of
attorney.
12. In the event that the Chargor shall fail to discharge all monies and
liabilities in full in accordance with the terms hereof or in the event
that the Chargor shall be in breach of any of the Chargor's covenants or
obligations herein contained whether expressed or implied or in the event
that the Chargor commits any act of bankruptcy or makes any assignment or
composition for the benefit of the Chargor's creditors or being a company
goes into liquidation (other than a voluntary liquidation for the purposes
of a reconstruction only the terms of which have been previously approved
in writing by the Chargee) or suffers the appointment of a receiver over
any part of the Chargor's assets then in any such event the whole of the
Principal Sum and all interest thereon and any other sums owing hereunder
to the Chargee shall become immediately due and payable and the provisions
of Sections 72 to 75 of the above Law shall apply subject to the
modifications hereinafter set forth:-
(i) the power of sale and of appointing a receiver and any other
remedies available to the Chargee shall become immediately
exercisable without further notice
(ii) in addition to the remedies provided by Section 72 of the above
Law the Chargee shall have the right to foreclose or enter into
possession of the charged premises or both in the same
circumstances as would allow the Chargee to exercise its power of
sale or appoint a receiver
(iii) in the event that the Chargee does appoint a receiver or enter
into possession of the Charged Premises the Chargee shall be
entitled to exercise its power of sale or foreclosure at any time
thereafter without further notice
(iv) upon the exercise of its power of sale the Chargee shall have the
right to sell the Charged Premises by private treaty as well as
by public auction
(v) wherever there is a reference in Section 73(6) of the above Law
to "five percent" this shall be read as "ten per cent"
(vi) a receiver appointed by the Chargee shall have such powers in
addition to those set out in the above Law or any other law
relating thereto as the Chargee shall deem
4
<PAGE> 6
necessary (including the right to sell the Charged Premises) for the
proper enforcement and protection of the Chargee's rights hereunder.
PROVIDED ALWAYS and it is hereby expressly declared and agreed that in
any case where any such modification of the above Law (or any other
modification provided for in this Charge) shall require the sanction of
the Court the Chargee shall have the right at its option to waive any
modification where it is in favour of the Chargee to do so or to seek the
sanction of the Court thereto and should the Chargee fail to obtain the
sanction of the Court to any particular modification or should the Chargee
elect to waive its rights under any modification then the original
provisions of the above Law shall apply without modification.
13. This Charge is not assignable alienable or transferable by the Chargor.
14. The Chargee may at any time transfer and assign the benefit of this Charge.
15. No neglect omission or forbearance on the part of the Chargee to take
advantage of or enforce any right arising out of any breach non-observance
or non-performance of any covenant or condition herein contained or by law
implied shall be deemed to operate as a general waiver of such covenant or
condition or the right to take advantage thereof either original or
recurring.
16. The taking of a judgment or judgments on any covenants contained in this
Charge shall not operate as a merger of the said covenant or covenants or
affect the Chargee's right to interest pursuant to the terms of this
Charge.
17. The Chargee shall not be liable for any loss which may occur by reason of
the exercise or execution of any or all of its remedies and powers
conferred given or implied by this Charge or by the Laws of the Cayman
Islands.
18. In the event that the Chargor is a Company the Chargor hereby represents
and warrants to the Chargee that it is duly incorporated and existing in
good standing under the Laws of the Cayman Islands (or under the Laws of
some other jurisdiction and duly registered to carry on business in the
Cayman Islands) and that it is qualified to do business wherever necessary
to carry on its present operations and that the making and performance of
this Charge is within its corporate powers having been properly authorised
by all necessary governmental and corporate approvals and does not
contravene any law or any contractual restriction binding on the Chargor
and that the Charge is a legal valid and binding obligation of the Chargor
enforceable against the Chargor in accordance with its terms and that
there are no pending or threatened actions or proceedings before any court
or administrative agency which may materially adversely affect the
Chargor's financial conditions and operations.
19. This Schedule shall be governed and construed solely according to the Laws
of the Cayman Islands.
20. Any notice required to be given to or served on the Chargor or Chargee
under these presents shall be deemed to be sufficiently served on or given
to the Chargee if service thereof is in compliance with the provisions of
section 153 of the Registered Land Law (1995 Revision) as the same may be
amended from time to time.
21. (a) The expression "this Charge" shall mean the Charge annexed hereto as
negatived modified or added to by this Schedule and all other
securities provided taken or available to the Chargee thereunder
including any power of attorney and the expression "the charged
premises" shall mean the land the subject of this Charge (or any part
or parts thereof) and all buildings erections fixtures and fittings
now or from time to time situate thereon or on some part or parts
thereof.
(b) In this Charge where the context so admits the words importing the
masculine gender shall include the feminine gender and vice versa and
words importing the singular
5
<PAGE> 7
number only shall include the plural number and vice versa and words
importing persons and all reference to persons shall include corporations
and firms.
(c) In this Charge where the context so admits the expression "the Chargor"
shall include persons deriving title under the Chargor or entitled to
redeem this Charge and the expression "the Chargee" shall include persons
deriving title under the Chargee to any reference herein to any statute or
section of any statute shall be deemed to include reference to any
statutory modification or re-enactment thereof for the time being in force.
(d) If there are two or more parties hereto comprising the Chargor the
expression "the Chargor" shall throughout mean and include such two or more
parties and each of them or (as the case may require) such two or more
parties or any of them and shall so far as the context so admits be
construed as well in the plural as in the singular and all covenants
charges agreements and undertakings herein expressed or implied on the part
of the Chargor shall be deemed to be joint and several covenants charges
agreements and undertakings by such parties.
[PUBLIC RECORD OFFICE CAYMAN ISLANDS STAMP]
