EXHIBIT 10.45
THE 7TH DAY OF FEBRUARY, 2003
EQUITABLE CHARGE OF SHARES
(Collateral to a Substituted Debenture bearing even date herewith and entered
into between the Borrower and the Secured Party)
BETWEEN
CONSOLIDATED WATER CO.LTD.
as Borrower
AND
SCOTIABANK (CAYMAN ISLANDS) LTD.
as Secured Party
with respect to the shares in
DESALCO LIMITED
THIS COLLATERAL CHARGE ("CHARGE") is made on the 7th day of February, 2003
between the following parties:
(1) CONSOLIDATED WATER CO. LTD., a company incorporated in the Cayman
Islands, with its registered office located at P.O. Box 1114 GT,
Trafalgar Place, George Town, Grand Cayman, Cayman Islands, (the
"BORROWER"); and
(2) SCOTIABANK (CAYMAN ISLANDS) LTD.a banking institution organised and
existing under the laws of the Cayman Islands, with its principal place
of business located at Scotiabank Centre, Cardinal Avenue, Georgetown,
Grand Cayman (the "SECURED PARTY" ).
RECITALS
A. The Borrower currently holds one hundred percent (100%) of the shares
of DesalCo Limited (the "COMPANY" ).
B. The Secured Party has agreed to provide certain loans to the Borrower.
C. Such loans will be made subject to the terms and conditions of a Loan
Agreement, dated the date hereof, among the Borrower and the Secured
Party (the "LOAN AGREEMENT" ).
D. It is a condition to the first disbursement under the Loan Agreement
that the Borrower shall have entered into the Charge.
E. The Board of Directors of the Borrower is satisfied that the Borrower
is entering into this Charge for the purposes of its business and that
its doing so benefits the Borrower.
F. The Borrower and the Secured Party intend this Charge to take effect as
a deed.
G. This Collateral Charge is intended to be collateral to a Substituted
Debenture bearing even date herewith entered into between the Borrower
and the Secured Party and shall be stamped as such.
1. INTERPRETATION
1.1 DEFINITIONS
(a) Capitalized terms used in this Charge without definition have the
meanings specified in Annex A to the Loan Agreement.
(b) In addition the following terms in this Charge have the meanings given
to them in this Clause.
"CHARGED SHARES" means any shares from time to time forming part of the Secured
Property.
"FINANCING DOCUMENTS" means collectively, (i) the Loan Agreement, (ii) the
Security Documents, and (iii) the Fee Letter.
"INITIALLY CHARGED SHARES" means all the shares in the Company specified in
recital "A" to this Charge of which the Company is the beneficial or registered
owner on the date of this Charge.
"OBLIGATIONS" shall mean, collectively, all loans, advances, debts, liabilities,
and obligations, howsoever arising, owed by the Borrower under a Financing
Document or otherwise to the Secured Party.
"RECEIVER" means an administrative receiver, a receiver and manager or any other
receiver (whether appointed pursuant to this Charge, pursuant to any statute, by
a court or otherwise) of the Secured Property or any part of it.
"SECURED OBLIGATIONS" means all present and future Obligations.
"SECURED PROPERTY" means the Initially Charged Shares and any other shares in
the Company of which the Borrower is or becomes the beneficial or registered
owner together with all dividends, stocks, shares, warrants, securities, rights,
monies or other property accruing on or derived from such shares.
"SECURITY" means the security created by this Charge.
"SECURITY PERIOD" means the period beginning on the date of this Charge and
ending on the date upon which:
(a) the Secured Party is under no obligation (whether actual or contingent)
to make advances or provide other financial accommodation to the
Borrower under any of the Financing Documents; and
(b) all Secured Obligations have been unconditionally and irrevocably paid
and discharged in full.
1.2 INTERPRETATION
The principles of interpretation set forth in Section 18.13 to the Loan
Agreement shall apply to this Charge.
1.3 CONTINUING EVENTS OF DEFAULT
An event which constitutes an Event of Default shall be regarded as continuing
if (a) the circumstances constituting such event continue and (b) the Secured
Party has not waived such of its rights under the Financing Documents as arise
as a result of the occurrence of that event.
1.4 CERTIFICATES
A certificate of the Secured Party as to the amount of any Secured Obligation
owed to it shall be prima facie evidence of the existence and amount of such
Secured Obligation.
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1.5 STATUTES
Any reference in this Charge to a statute or statutory provision shall, unless
the contrary is indicated, be construed as a reference to such statute or
statutory provision as the same shall have been or may be amended or re-enacted.
1.6 NOMINEES
If the Secured Party causes or requires the Charged Shares to be registered in
the name of a nominee for the Secured Party, any reference in this Charge to the
Secured Party shall, if the context so permits or requires, be construed as a
reference to the Secured Party and such nominee.
1.7 CLAUSE AND SCHEDULE HEADINGS
Clause and Schedule headings are for ease of reference only and shall not affect
the construction of this Charge.
2. EQUITABLE CHARGE
2.1 CHARGE
The Borrower hereby charges with full title guarantee the Secured Property to
the Secured Party to hold the same on trust as security for the payment and
discharge of the Secured Obligations.
2.2 DEPOSIT OF SHARE CERTIFICATES
Immediately upon execution of this Charge and as a condition to the initial
disbursement under the Loan Agreement, the Borrower shall deposit with the
Secured Party all share certificates and other documents of title relating to
the Initially Charged Shares together with stock transfer forms in respect of
the Initially Charged Shares duly executed in blank by or on behalf of the
Borrower.
2.3 FURTHER SHARES
Upon its becoming the beneficial or registered owner of any Charged Shares
(other than the Initially Charged Shares) the Borrower shall ensure that such
Charged Shares (unless already so registered) are registered in the name of the
Borrower and shall promptly notify the Secured Party of such circumstances and
deposit with the Secured Party any share certificates and other documents of
title representing such Charged Shares together with blank stock transfer forms
in respect of such Charged Shares duly executed by or on behalf of the Borrower.
The Borrower shall pay when due all calls or other requests for payments due in
respect of any of the Secured Property, but if the Borrower fails to make any
such payment the Secured Party may (but shall not be obliged to) make such
payment on behalf of the Borrower and if the Secured Party does so the Borrower
shall promptly on demand of the Secured Party pay to the Secured Party an amount
equal to such payment.
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3. DIVIDENDS, VOTING AND INFORMATION
3.1 SECURITY NOT ENFORCEABLE
Unless and until the Security has become enforceable pursuant to Clause 8.1
(Security Enforceable), the Borrower shall continue to be entitled to:
(a) receive and retain all dividends, interest and other monies arising
from the Secured Property; and
(b) exercise all voting rights in relation to the Charged Shares;
provided that the Borrower shall not exercise such voting rights, or otherwise
permit or agree to (i) any variation of the rights attaching to or conferred by
the Secured Property or any part of it, (ii) any increase in the issued share
capital of the Company in any manner which, in the opinion of the Secured Party,
would, or would be reasonably likely to, impair the value of, or prejudice the
ability of the Secured Party to realise, the Security or (iii) in violation of
any provision of the Financing Documents.
3.2 SECURITY ENFORCEABLE
At any time after the Security has become enforceable pursuant to Clause 8.1,
the Secured Party shall be entitled to cause the Charged Shares to be registered
in its name and may at its discretion (in the name of the Borrower or otherwise
and without any further consent or authority from the Borrower):
(a) exercise or refrain from exercising any voting rights in respect of the
Charged Shares and revoke, or cause to be revoked, any proxies given
pursuant to Clause 3.1 (Security not Enforceable);
(b) apply all dividends, interest and other monies arising from the Secured
Property as if they were proceeds of sale under this Charge;
(c) exercise or refrain from exercising the rights of a legal owner of the
Secured Property, including the right, in relation to any company whose
shares or other securities are included in the Secured Property, to
concur or participate in:
(i) the reconstruction, amalgamation, sale or other disposal of
such company or any of its assets or undertaking (including
the exchange, conversion or reissue of any shares or
securities as a consequence thereof),
(ii) the realisation, modification or variation of any rights or
liabilities attaching to any such shares or securities, and
(iii) the exercise, renunciation or assignment of any right to
subscribe for any such shares or securities,
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in each case in such manner and on such terms as the Secured
Party may think fit, and all rights resulting from any such
action shall form part of the Secured Property.
3.3 INFORMATION
If the Borrower receives a balance sheet, profit and loss account or any notice,
report, statement or circular sent or delivered by the issuer of any Charged
Share to its members, it shall promptly deliver a copy to the Secured Party.
4. CONTINUING SECURITY
4.1 CONTINUING AND INDEPENDENT SECURITY
This Charge shall constitute and be continuing security which shall not be
released or discharged by any intermediate payment or settlement of all or any
of the Secured Obligations, shall continue in full force and effect until the
end of the Security Period and is in addition to and independent of, and shall
not prejudice or merge with, any other security (or any right of set-off) which
the Secured Party may hold at any time for the Secured Obligations or any of
them.
4.2 AVOIDANCE OF PAYMENTS
Where any release, discharge or other arrangement in respect of any Secured
Obligation or any security any Secured Party may hold for such Secured
Obligation is given or made in reliance on any payment or other disposition
which is avoided or must be repaid in an insolvency, liquidation or otherwise,
and whether or not such Secured Party has conceded or compromised any claim that
any such payment or other disposition will or should be avoided or repaid, this
Charge and the Security shall continue as if such release, discharge or other
arrangement had not been given or made.
4.3 IMMEDIATE RECOURSE
The Secured Party shall not be obliged before exercising any of the rights
conferred on it by this Charge or by law to seek to recover amounts due from the
Borrower or to exercise or enforce any other rights or security it may have or
hold in respect of the Secured Obligations.
4.4 WAIVER OF DEFENCES
Neither the obligations of the Borrower under this Charge nor the Security
Documents and the rights, powers and remedies conferred on the Secured Party by
this Charge or by law shall be discharged, impaired or otherwise affected by:
(a) the winding-up, dissolution, administration or re-organisation of the
Borrower or any other person or any change in the status, function,
control or ownership of the Borrower or any such person;
(b) any of the Secured Obligations or any other security held by the
Secured Party in respect thereof being or becoming illegal, invalid,
unenforceable or ineffective in any respect;
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(c) any time or other indulgence being granted or agreed to with the
Borrower or any other person in respect of the Secured Obligations or
any of them or in respect of any other security held by the Secured
Party in respect thereof;
(d) any amendment to, or any variation, waiver or release of, the Secured
Obligations or any of them or any other security held by the Secured
Party in respect thereof;
(e) any total or partial failure to take or perfect any security proposed
to be taken in respect of the Secured Obligations or any of them;
(f) any total or partial failure to realise the value of, or any release,
discharge, exchange or substitution of, any other security held by the
Secured Party in respect of the Secured Obligations or any of them; or
(g) any other act, event or omission which might operate to discharge,
impair or otherwise affect the obligations of the Borrower hereunder,
the Security or any of the rights, powers and remedies conferred on the
Secured Party by this Charge or by law.
4.5 NO COMPETITION
Any right which the Borrower may have (a) by way of contribution or indemnity in
relation to the Secured Obligations or (b) otherwise to claim or prove as a
creditor of the Company or any other person or its estate in competition whether
a right of subrogation or otherwise with the Secured Party, shall be exercised
by the Borrower only if and to the extent that the Secured Party so requires and
in such manner and upon such terms as the Secured Party may specify and the
Borrower shall hold any moneys, rights or security held or received by it as a
result of the exercise of any such rights on trust for the Secured Party for
application in accordance with the terms of this Charge as if such moneys,
rights or security were held or received by the Secured Party under this Charge.
4.6 APPROPRIATION
The Secured Party shall not be obliged to apply any sums held or received by it
in respect of the Secured Obligations in or towards payment of the Secured
Obligations and any such sum shall be held by or paid to the Secured Party for
application pursuant to the terms of this Charge.
4.7 SUBROGATION
The Borrower shall have no right of subrogation in respect of the performance of
any of its obligations under this Agreement and the Charge until all of the
Secured Obligations have been paid in full.
5. REPRESENTATIONS AND WARRANTIES
The Borrower makes the representations and warranties set out in Clauses 5.1
(Status and Due Authorisation) to 5.12 (No Security from the Company) and
acknowledges that the Secured Party has entered into this Charge in reliance on
those representations and warranties.
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5.1 STATUS AND DUE AUTHORISATION
It is a company duly incorporated with limited liability under the laws of the
Cayman Islands with power to enter into this Charge and to exercise its rights
and perform its obligations under this Charge and all corporate and other action
required to authorise its execution of this Charge and its performance of its
obligations hereunder has been duly taken.
5.2 BINDING OBLIGATIONS
The obligations expressed to be assumed by it in this Charge are legal and valid
obligations binding on it in accordance with the terms of this Charge which
constitutes a first priority fixed charge over the Charged Shares subject to any
general principles of law limiting its obligations which are referred to in any
legal opinion delivered pursuant to the Loan Agreement.
5.3 ALL ACTIONS TAKEN
All acts, conditions and things required to be done, fulfilled and performed in
order (a) to enable it lawfully to enter into, exercise its rights under and
perform and comply with the obligations expressed to be assumed by it in this
Charge, (b) to ensure that the obligations expressed to be assumed by it in this
Charge are legal, valid and binding and (c) to make this Charge admissible in
evidence in its jurisdiction of incorporation have been done, fulfilled and
performed.
5.4 NO DEDUCTIONS OR WITHHOLDINGS
It will not be required to make any deduction or withholding from any payment it
may make under this Charge.
5.5 NO FILING OR STAMP TAXES
Under the laws of its jurisdiction of incorporation, it is not necessary that
this Charge be filed, recorded or enrolled with any court or other authority in
the Cayman Islands or that any ad valorem stamp, registration or similar tax be
paid on or in relation to this Charge.
5.6 NO WINDING-UP
It has not taken any corporate action nor have any other steps been taken or
legal proceedings been started or (to the best of its knowledge and belief)
threatened against it for its winding-up, dissolution, administration or
re-organisation or for the appointment of a receiver, administrator,
administrative receiver, trustee or similar officer of it or of any or all of
its assets or revenues.
5.7 NO ADVERSE INTERESTS
Subject only to the Security, no person other than the Borrower has any legal or
beneficial interest (or any right to claim any such interest) in the Secured
Property and the Borrower has not received notice of any such claim.
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5.8 NO DISPOSALS
Save as contemplated in this Charge, it has not transferred, mortgaged, charged
or otherwise disposed of (or agreed to transfer, mortgage, charge or otherwise
dispose of), whether by way of security or otherwise, the benefit of all or any
of its right, title and interest in and to the Secured Property or any part of
it.
5.9 NO CONFLICTS
Its execution of this Charge and its exercise of its rights and performance of
its obligations hereunder do not and will not (a) conflict with the provisions
of (i) any agreement, mortgage, bond or other instrument or treaty to which it
is a party or which is binding upon it or any of its assets, (ii) its
constitutive documents or any rules and regulations made thereunder or (iii) any
applicable law, regulation or official or judicial order or (b) cause any of the
foregoing representations to be untrue.
5.10 THE CHARGED SHARES
Each Charged Share is fully paid or credited as fully paid, no calls have been
made in respect thereof and remain unpaid and no calls can be made in respect of
such Charged Share in the future and the terms of each Charged Share and of the
Memorandum and Articles of Association of the issuer of such Charged Share do
not restrict or otherwise limit the Borrower's right to transfer or charge such
Charged Share.
5.11 CHOICE OF LAW
In any proceedings taken in its jurisdiction of incorporation in relation to
this Charge, the choice of Cayman law as the governing law of this Charge and
any judgment obtained in the Cayman Islands will be recognised and enforced.
5.12 NO SECURITY FROM THE COMPANY
It has not requested or taken any security from the Company for any obligations
or liabilities of the Company to it.
5.13 REPETITION
The representations and warranties set out in Clauses 5.1 (Status and Due
Authorisation) to 5.12 (No Security from the Company):
(a) shall survive the execution of each Financing Document and each
drawdown under the Loan Agreement; and
(b) are made on the date hereof and are deemed to be repeated on each Draw
down Date during the Security Period with reference to the facts and
circumstances then existing.
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6. UNDERTAKINGS
6.1 AUTHORISATIONS
The Borrower shall obtain, comply with the terms of and do all that is necessary
to maintain in full force and effect all authorisations, approvals, licences and
consents required in or by the laws and regulations of its jurisdiction of
incorporation to enable it lawfully to enter into and perform its obligations
under this Charge and to ensure the legality, validity, enforceability or
admissibility in evidence in its jurisdiction of incorporation of this Charge.
6.2 NO ACTION
The Borrower shall not take any action which would cause any of the
representations made in Clause 5 (Representations and Warranties) to be untrue
at any time during the Security Period.
6.3 NOTIFICATION OF MISREPRESENTATION
The Borrower shall notify the Secured Party of the occurrence of any event which
results in or may reasonably be expected to result in any of the representations
made in Clause 5 (Representations and Warranties) being untrue when made or when
deemed to be repeated.
6.4 NO VARIATION OR RELEASE
The Borrower shall not, without the prior written consent of the Secured Party,
purport to vary or revoke any notice or instruction relating to this Charge
which it has given or may later give to any person.
6.5 NO ACTION TO JEOPARDISE SECURITY CONSTITUTED HEREBY
The Borrower shall not do or fail to do or cause or permit another person to do
or omit to do anything which is liable to jeopardise the effectiveness or
priority, in relation to the Security.
6.6 PAYMENT OF TAXES
In the event that the Secured Party exercises its rights under Clause 8.1 and
8.6 in order to effect the transfer and registration of the Charged Shares in
the name of the Secured Party and such actions lead to the imposition of any
Tax, be it pursuant to the Land Holding Companies Share Transfer Tax Law of the
Cayman Islands or otherwise, the Borrower shall be liable for the payment of
such Tax and should the Borrower fail to pay such Taxes the Secured Party shall
have the option, but not the obligation, to pay such Taxes and add whatever
amount is paid by the Secured Party in reduction of such Taxes to the total
amount outstanding under the Loan Agreement.
7. FURTHER ASSURANCE
The Borrower shall from time to time and at its own expense give all such
assurances and do all such things as the Secured Party may require in order to
enable the Secured Party to perfect or protect the security created or intended
to be created by this Charge or to exercise any of the
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rights conferred on it by this Charge or by law and to that intent the Borrower
shall execute all such instruments, deeds and agreements and give all such
notices and directions as the Secured Party may require.
8. ENFORCEMENT OF SECURITY
8.1 SECURITY ENFORCEABLE
The Security shall become immediately enforceable if an Event of Default has
occurred and is continuing as defined above in Clause 1.3.
8.2 ENFORCEMENT
At any time after the Security has become enforceable, the Secured Party may in
its absolute discretion enforce all or any part of the Security and exercise any
of the rights conferred on it by this Charge or by law at such times and in such
manner as it thinks fit.
8.3 POWER OF SALE
At any time after the Security has become enforceable pursuant to Clause 8.1
(Security Enforceable), the Secured Party may (without notice to the Borrower)
sell or otherwise dispose of the Secured Property or any part of it and shall be
entitled to apply the proceeds of such sale or other disposal in paying the
costs of such sale or disposal and thereafter in or towards the discharge of the
Secured Obligations or otherwise as provided for in this Charge.
8.4 STATUTORY POWERS
For the purposes of all powers implied by statute the Secured Obligations shall
be deemed to have become due and payable on the date of this Charge.
8.5 REGISTRATION OF SHARES
The Secured Party shall be entitled at any time after the Security has become
enforceable pursuant to Clause 8.1 (Security Enforceable) to complete any stock
transfer forms then held by the Secured Party pursuant to this Charge in the
name of the Secured Party and thereupon the Borrower shall do whatever the
Secured Party requires in order to procure:
(a) The prompt registration of such transfer or transfers and the prompt
issue of a new certificate or certificates for the relevant Charged
Shares in the name of the Secured Party who shall hold such Charged
Shares as Security for the Obligations in furtherance of the power of
sale provided for in Clause 8.3 above; and
(b) Compliance by the Company with all requirements of the Land Holding
Companies Share Transfer Tax Law (2002 Revision), as the same may be
amended from time to time, or any legislation in substitution or in
addition thereto and the Borrower shall provide all assistance as may
be needed or required by the Company to enable it to meet such
compliance whether financial or otherwise.
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9. RECEIVERS
9.1 APPOINTMENT
At any time after the Security has become enforceable (whether or not the
Secured Party shall have taken possession of the Secured Property), or following
the dissolution of the Borrower, and without any or further notice, the Secured
Party may, by Deed or writing signed by any officer or manager of the Secured
Party or any person authorised for this purpose by the Secured Party, appoint
any person to be Receiver, and may similarly remove any Receiver whether or not
it appoints any person in his place. If the Secured Party appoints more than one
person as Receiver, the Secured Party may give the relevant persons power to act
either jointly or severally.
9.2 SCOPE OF APPOINTMENT
Any Receiver may be appointed either Receiver of all the Secured Property or
Receiver of such part of the Secured Property as may be specified in the
appointment. In the latter case, the rights conferred on a Receiver by Clause 9
(Receivers) shall have effect as though every reference in that Clause to the
"SECURED PROPERTY" were a reference to the part of the Secured Property so
specified or any part thereof.
9.3 POWERS OF A RECEIVER
Any Receiver appointed under this Charge shall have all the powers granted to a
receiver under the applicable law and, in addition shall have the right, either
in his own name or in the name of the Borrower or otherwise and in such manner
and upon such terms and conditions as the Receiver thinks fit:
(a) in connection with any sale or disposition of the Secured Property, to
receive the consideration therefor in a lump sum or in instalments and
to receive shares by way of consideration;
(b) to grant options, licences or any other interest whatsoever in relation
to the Secured Property;
(c) to do all other acts and things which he may consider desirable or
necessary for realising the Secured Property or incidental or conducive
to any of the rights, powers or discretions conferred on a Receiver
under, or by virtue of, this Charge; and
(d) to exercise in relation to the Secured Property all the powers,
authorities and things which he would be capable of exercising if he
were the absolute beneficial owner of the same.
9.4 CONFLICT
If there is any ambiguity or conflict between the powers conferred on the
Receiver by the applicable law and the powers conferred by Clause 9.3 (Powers of
a Receiver), the powers conferred by Clause 9.3 (Powers) shall prevail.
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9.5 SECURITY TRUSTEE OF BORROWER
Any Receiver shall be the agent of the Borrower for all purposes and the
Borrower shall be solely responsible for the contracts, engagements, acts,
omissions, defaults and losses of the Receiver and for all liabilities incurred
by the Receiver.
9.6 REMUNERATION
The Secured Party may, from time to time, determine the remuneration of any
Receiver and may direct payment of such remuneration out of moneys accruing to
the Receiver as Receiver but the Borrower alone shall be liable for the payment
of such remuneration and for all other costs, charges and expenses of the
Receiver, unless incurred as the result of the fraud, gross negligence or wilful
misconduct of the Receiver.
10. APPLICATION OF PROCEEDS
Any moneys held or received by the Secured Party under or pursuant to this
Charge shall be applied by the Secured Party in reduction of the amounts due to
the Secured Party under the terms of the Loan Agreement.
11. POWER OF ATTORNEY
11.1 APPOINTMENT
By way of security for the performance of its obligations hereunder, the
Borrower hereby irrevocably appoints the Secured Party, any Receiver of the
Secured Property or any part of it and its delegates and sub-delegates to be its
attorney acting severally (or jointly with any other such attorney or attorneys)
and on its behalf and in its name or otherwise to do any and every thing which
the Borrower is obliged to do under the terms of this Charge or which such
attorney considers necessary in order to enable the Secured Party or such
attorney to exercise the rights conferred on it by this Charge or by law.
11.2 RATIFICATION
The Borrower hereby ratifies and confirms and agrees to ratify and confirm
whatever any attorney appointed under this Charge shall do in its capacity as
such.
12. RELEASE OF THE SECURITY
After the end of the Security Period, the Secured Party shall, at the request
and cost of the Borrower, execute all such documents and do all such other
things as may be required to release the Security, in each case without recourse
to or any representation or warranty by or from the Secured Party.
13. COSTS AND EXPENSES
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13.1 TRANSACTION COSTS
The Borrower agrees with the Secured Party that it shall on demand of the
Secured Party reimburse the Secured Party on a full indemnity basis all costs
and expenses (including legal fees), incurred by, or any remuneration payable to
the Secured Party in connection with the preparation, negotiation, execution and
perfection of this Charge and the implementation of the arrangements
contemplated herein.
13.2 STAMP TAX
The Borrower shall pay any and all stamp, registration and other taxes to which
this Charge or any judgment given in connection herewith is or at any time may
be subject and shall on demand indemnify the Secured Party against any
liabilities, costs, claims and expenses (including legal fees) resulting from
any failure to pay or delay in paying any such tax.
13.3 INDEMNITY
The Borrower shall indemnify and hold harmless the Secured Party from and
against any and all costs, claims losses, expenses (including legal fees) and
liabilities, which the Secured Party may incur as a result of the occurrence of
any Event of Default, the enforcement of the Security or the exercise or
enforcement by the Secured Party of any of the rights conferred on it by this
Charge or by law unless incurred by the Secured Party as a result of its own
fraud, wilful misconduct or gross negligence or the fraud, gross negligence or
wilful misconduct of its delegates and subdelegates.
14. NO WAIVER; REMEDIES CUMULATIVE
No failure or delay on the part of the Secured Party in exercising any right,
power or privilege hereunder or under any other Financing Document and no course
of dealing between the Borrower and the Secured Party shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, power or
privilege hereunder or under any other Financing Document preclude any other or
further exercise thereof or the exercise of any other right, power or privilege
hereunder or thereunder. No notice to or demand on the Borrower in any case
shall entitle the Borrower to any other or further notice or demand in similar
or other circumstances or constitute a waiver of the rights of the Secured Party
to take any other or further action in any circumstances without notice or
demand. All remedies, either under this Agreement or any other Financing
Document or pursuant to any applicable law or otherwise afforded to the Secured
Party shall be cumulative and not alternative.
15. ADDITIONAL PROVISIONS
15.1 SEVERABILITY
Any provision hereof which is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such prohibition
or unenforceability without invalidating the remaining provisions hereof and
without affecting the validity or enforceability of any provision in any other
jurisdiction.
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15.2 CURRENCY CONVERSION
In order to apply any sum held or received by the Secured Party in or towards
payment of the Secured Obligations, the Secured Party may purchase an amount in
another currency and the rate of exchange to be used shall be that at which, at
such time as it considers appropriate, the Secured Party is able to effect such
purchase.
15.3 JUDGMENT CURRENCY
This is an international transaction in which the specification of Dollars and
payment in the Cayman Islands is of the essence, and the obligations of the
Borrower under this Charge and under the other Financing Documents to make
payment to (or for the account of) the Secured Party in Dollars shall not be
discharged or satisfied by any tender or recovery pursuant to any judgment
expressed in or converted into any other currency or in another place except to
the extent that such tender or recovery results in the effective receipt by the
Secured Party in Cayman of the full amount of Dollars payable to the Secured
Party under this Charge.
(a) If any sum due from the Borrower under this Charge (a "SUM"), or any
order, judgment or award given or made in relation to a Sum, has to be
converted from the currency (the "FIRST CURRENCY") in which that Sum is
payable into another currency (the "SECOND CURRENCY") for the purpose
of:
(i) making or filing a claim or proof against the Company or the
Borrower;
(ii) obtaining or enforcing an order, judgment or award in relation
to any litigation or arbitration proceedings,
the Borrower shall as an independent obligation, within three (3)
Business Days of demand, indemnify the Secured Party against any cost,
loss or liability arising out of or as a result of the conversion
including any discrepancy between (A) the rate of exchange used to
convert that Sum from the First Currency into the Second Currency and
(B) the rate or rates of exchange available to the Secured Party at the
time of its receipt of that Sum.
(b) The Borrower waives any right it may have in any jurisdiction to pay
any amount under this Charge in a currency or currency unit other than
that in which it is expressed to be payable.
15.4 RIGHTS CUMULATIVE
The rights and remedies provided by this Charge are cumulative and not exclusive
of any rights or remedies provided by law.
15.5 MORTGAGEE IN POSSESSION
Neither the Secured Party nor any Receiver shall by reason of its taking any
action permitted by this Charge or its taking possession of the Secured Property
or any part of it be liable to account as mortgagee in possession or be liable
for any loss on realisation or for any default or omission
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for which a mortgagee in possession might be liable other than for its own
fraud, gross negligence and wilful misconduct, or the fraud, gross negligence or
wilful misconduct of its delegates.
16. ASSIGNMENT
16.1 THE BORROWER'S RIGHTS
The rights of the Borrower under this Charge are not assignable or transferable
and the Borrower agrees that it will not purport to assign all or any such
rights.
16.2 THE SECURED PARTY'S RIGHTS
The rights of the Secured Party under this Charge are assignable in whole or in
part and the Secured Party may assign all or any such rights without the consent
of the Borrower. The Secured Party shall provide written notice to the Borrower
of any such assignment.
17. NOTICES
(a) All notices, requests, approvals, consents and other communications
provided for hereunder shall be in writing (including, unless the
context expressly otherwise provides, by facsimile transmission,
provided that any matter transmitted by the Borrower by facsimile (i)
shall be promptly confirmed by a telephone call to the recipient at the
number specified on the applicable signature page hereof, and (ii)
shall be followed promptly by a hard copy original thereof by express
courier) and faxed or delivered, to the address or facsimile number
specified for notices on the applicable signature page hereof or to
such other address as shall be designated by such party in a written
notice to the other parties hereto.
(b) All such notices, requests, approvals, consents and communications (i)
sent by express courier will be effective upon delivery to or refusal
to accept delivery by the addressee, and (ii) transmitted by facsimile
will be effective when sent and facsimile confirmation received; except
that all notices and other communications to any Agent shall not be
effective until actually received.
(c) The Borrower acknowledges and agrees that any agreement of the Secured
Party to receive certain notices by telephone and facsimile is solely
for the convenience and at the request of the Borrower. The Secured
Party shall be entitled to rely on the authority of any Person
purporting to be a Person authorized by the Borrower to give such
notice and the Secured Party shall not have any liability to the
Borrower or other Person on account of any action taken or not taken by
the Secured Party in reliance upon such telephonic or facsimile notice.
(d) All notices, requests and other communications hereunder and under the
other Financing Documents shall be in the English language unless
otherwise agreed by the parties hereto.
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18. GOVERNING LAW AND JURISDICTION
THIS CHARGE IS GOVERNED BY AND SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAW OF
THE CAYMAN ISLANDS.
19. SUBMISSION
(a) For the exclusive benefit of the Secured Party, the Borrower
irrevocably agrees that the courts of Cayman are to have jurisdiction
to settle any claims or disputes arising under, out of or in connection
with this Charge (including without limitation any claim or dispute
relating to the validity, interpretation, performance, termination or
enforcement of this Charge) and that accordingly any suit, action or
proceedings in that respect (together in Clauses 19 and 20 referred to
as "PROCEEDINGS" ) may be brought in such courts.
(b) The Borrower irrevocably waives and agrees not to raise any objection
which it may have now or hereafter to the laying of the venue of any
Proceedings in the courts of Cayman and any claim that any such
Proceedings have been brought in an inconvenient or inappropriate
forum.
(c) The Borrower irrevocably agrees not to take Proceedings in any court of
competent jurisdiction other than the courts of Cayman, save with
respect to any counterclaim asserted by the Borrower in the course of
proceedings previously commenced by the Secured Party. Nothing
contained in this Clause 19 shall limit the right of the Secured Party
to take Proceedings against the Borrower in any other court of
competent jurisdiction, nor shall the taking of Proceedings in one or
more jurisdictions preclude the taking of Proceedings in any other
jurisdiction, whether concurrently or not.
20. JUDGMENTS AND IMMUNITY
(a) The Borrower recognizes and acknowledges that this Charge constitutes a
commercial transaction and accordingly it acknowledges and agrees that
it is not entitled to plead, and pursuant to this Clause 20 hereby
waives to the fullest extent permitted by law any right to claim,
sovereign immunity for any purpose whatsoever, including, but not
limited to, any right to plead sovereign immunity in respect of any
Proceedings pursuant to this Charge.
(b) The Borrower consents generally, in respect of any Proceedings pursuant
to this Charge for the purpose of enforcing any order, judgment or
award, to the giving of any relief or the issuing of any process in
connection with such order, judgment or award including, without
limitation, the making, enforcement or execution against any property
of any order, judgment or award and to the extent that the Borrower may
be entitled in any jurisdiction to claim for itself or its property
immunity in respect of its obligations under this Charge from any suit,
execution, attachment (whether in aid of execution, before judgment or
otherwise) or legal process or to the extent that in any jurisdiction
there may be attributed to itself or its property such immunity, the
Borrower agrees not to claim and hereby irrevocably waive such immunity
to the fullest extent permitted by the laws of such jurisdiction.
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(c) The Borrower unconditionally and irrevocably agrees, with respect to
any final order, judgment or award in any Proceedings made pursuant to
this Charge and not subject to appeal (a "JUDGMENT"), that:
(i) the Judgment shall be conclusive and binding upon it;
(ii) it shall be bound by and recognize the Judgment in any
jurisdiction;
(iii) to the extent permitted by law, it shall not claim, invoke on
its behalf or for its benefit any right it may have under the
laws of Cayman, or any other state or jurisdiction, to
prevent, delay, hinder, nullify or in any other way obstruct
the enforcement or execution of the Judgment; and
(iv) to the extent permitted by law, it shall not, and shall
irrevocably waive any right to, challenge the Judgment on any
ground or the enforcement or execution of the Judgment in any
jurisdiction (other than by way of appeal in the original
jurisdiction).
21. COUNTERPARTS AND EFFECTIVENESS
21.1 COUNTERPARTS
This Charge may be executed in any number of counterparts and by the different
parties hereto on separate counterparts, each of which when so executed and
delivered shall be an original, but all of which shall together constitute one
and the same instrument.
21.2 EFFECTIVENESS
This Charge shall take effect and be delivered as a deed on the date on which it
is stated to be made.
22. AMENDMENT OR WAIVER
No provision of this Agreement may be amended, supplemented, modified or waived,
except by written instrument signed by each of the parties hereto.
* * *
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IN WITNESS WHEREOF this Charge has been executed as a deed by the parties hereto
and has been delivered on date stated at the beginning of this Deed.
THE BORROWER )
Executed on behalf of )
CONSOLIDATED WATER CO. LTD. ) /s/ Jeffrey M. Parker
as a deed by: )
Name: Mr. Jeffrey Parker
Title: Chief Executive Officer
Notice Address:
Address:
P.O.Box 1114 GT
Trafalgar House
Grand Cayman, Cayman Islands.
Attention: Mr. Jeffrey Parker
Telephone No.: 345 945-4277
Telecopier No. 345 949-2957
SECURED PARTY )
EXECUTED ON BEHALF OF ) /s/ Bruce John
SCOTIABANK (CAYMAN ISLANDS) LTD. )
as a deed by:
Name: Mr. Bruce John
Title: Commercial Banking Manager
Notice Address:
Address:
Scotiabank (Cayman Islands) Ltd.
Scotia Centre
Cardinal Avenue
P.O. Box 689
Grand Cayman
Attention: Commercial Banking Manager
Telephone No.: 345 949-7666
Telecopier No. 345 949-5130
By its execution of this Equitable Charge of Shares, DESALCO LIMITED
hereby acknowledges the terms and conditions hereof, and irrevocably undertakes
that should the Secured Party exercise its rights under this Equitable Charge of
Shares, DesalCo Limited shall not take any action, or fail to take any required
action, which would have the effect of frustrating the Secured Party's ability
to be recorded in the Register of Members as the registered legal and beneficial
owner of the Shares.
DESALCO LIMITED
/s/ Jeffery Parker
Name: Mr. Jeffrey Parker
Title: Chief Executive Officer
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