Cayman Islands: We Hope This Registers! A Summary Of Cayman Corporate And Partnership Registers In A Finance Transaction.

Cayman registers... they all sound vaguely similar but do very different things (and not always what you are expecting). Where does a Cayman partnership record security that it has granted? Why is a register of security interests irrelevant to what the entity itself has charged? Should a certain register be updated, annotated, just reviewed, provided at all...?

Because we know that it can be a little befuddling, we have set out below a guide to the various Cayman exempted company, limited liability company and exempted limited partnership registers in the context of a finance transaction. The first section is a summary of each register (what it does and when it is relevant) and the second section is more of a "choose your own structure" table, setting out the applicable registers in each case (divided into whether your transaction has (i) a Cayman borrower / pledgor / general partner / ultimate general partner, or (ii) a Cayman pledged entity). Although Cayman registers are obviously fantastically interesting, rather than being a fun chronological read-through we instead hope that this article can serve as a useful go-to guide for transactions involving Cayman entities. (We would also note that this is a look at the registers in the context of common commercial transactions, rather than setting out the obligations to maintain and update registers generally.)

EXEMPTED COMPANY REGISTERS

1. Register of Directors and Officers (ROD)

   • What does it do? Records the names and addresses of the directors and officers of the exempted company (and the date of appointment / resignation).
   • When is it relevant? If the exempted company is signing documents as a borrower, general partner (GP) or ultimate general partner (UGP), to ensure that the correct people / entities are signing the suite of documents (resolutions, certificates, transaction documents).
   • Should it be updated as part of the transaction? No.

2. Register of Mortgages and Charges (ROMC)

   • What does it do? Records the security granted by the exempted company itself or any partnership for which is acts as GP (or UGP).
   • When is it relevant? If the exempted company (i) is granting security itself, or (ii) is acting as GP (or UGP) of a partnership that is granting security (including if it is acting as GP or UGP of a foreign partnership, subject to the laws of that foreign partnership). The ROMC will be reviewed prior to closing to ensure that security has not already been granted over the applicable assets.
   • Should it be updated as part of the transaction? Yes. If the exempted company (i) is granting security itself, then the ROMC is required to be updated with the details of the new security, or (ii) is acting as GP / UPG of a partnership that is granting security, then it is advisable that the ROMC be updated with the details of the new security.

3. Register of Members (ROM)

   • What does it do? Sets out the shareholders of the exempted company, including the date of becoming / ceasing to be a shareholder and number / class of shares owned. Under Cayman law, the register of members is generally definitive of share ownership.
   • When is it relevant? If the identity of the shareholders is relevant to the transaction, so (i) if shareholder resolutions are being signed (to confirm that the correct shareholders are signing), or (ii) if the shares of the exempted company itself are being secured (to ensure that the applicable shareholder does actually own the shares).
   • Should it be updated as part of the transaction? If security is being granted over the shares in the exempted company, then it is best practice for the ROM to be updated with an annotation noting that the shares are subject to security. The ROM will also be updated if the shareholding of the exempted company changes (e.g. if a golden share is being issued).

LIMITED LIABILITY COMPANY (LLC) REGISTERS

1. Register of Managers (ROMAN)

   • What does it do? Records the details of the managers of the LLC (and the date of appointment / resignation).
   • When is it relevant? If the LLC is manager-managed (as determined by the terms of the LLC Agreement) and is signing documents as a borrower or GP (or UGP) of a partnership, to ensure that the correct people / entities are signing the various documents (resolutions, certificates, transaction documents).
   • Should it be updated as part of the transaction? No.

2. Register of Members (ROM)

   • What does it do? Sets out the members of the LLC, including the date of becoming / ceasing to be a member.
   • When is it relevant? If the identity of the members is relevant to the transaction, so (i) if the LLC is member-managed (as determined by the terms of the LLC Agreement) and is signing documents as a borrower or GP (or UGP), to ensure that the correct people / entities are signing the various documents, or (ii) if the membership interests of the LLC are being secured (to ensure that the applicable member does actually hold the membership interests).
   • Should it be updated as part of the transaction? No.

3. Register of Mortgages and Charges (ROMC)

   • What does it do? Records the security granted by the LLC itself or by any partnership for which it acts as GP (or UGP).
   • When is it relevant? If the LLC (i) is granting security itself, or (ii) is acting as GP (or UGP) of a partnership that is granting security (including if it is acting as GP or UGP of a foreign partnership, subject to the laws of that foreign partnership). The ROMC will be reviewed prior to closing to ensure that security has not already been granted over the applicable assets.
   • Should it be updated as part of the transaction? Yes. If the LLC (i) is granting security itself, then the ROMC is required to be updated with the details of the new security, or (ii) is acting as GP / UPG of a partnership that is granting security, then it is advisable that the ROMC be updated with the details of the new security.

4. Register of Security Interests (ROSI)

   • What does it do? Records whether security has been granted by a member over its membership interest in an LLC.
   • When is it relevant? When the status of membership interests in the LLC are relevant to the transaction (e.g. if they are the subject of the security package).
   • Should it be updated as part of the transaction? Yes, if security is being granted over a member's membership interest in the LLC.

EXEMPTED LIMITED PARTNERSHIP (ELP) REGISTERS

1. Register of Partners and Register of Contributions (ROP / ROC)

   • What does it do? Sets out (i) the names and address of each limited partner and when it became / ceased to be a limited partner, and (ii) the amount and date of each partner's contribution to the fund (and of any returns). These are technically two separate registers, but often provided together.
   • When is it relevant? When the limited partners and contributions to date are relevant to the transaction and security package. We would note that in subscription facilities, the commercial information provided by way of these registers has often already been provided to the lender in a separate form (such as through the subscription documentation and additional investor / fund information) and so the ROP / ROC are not always required as well (generally this is a deal specific point).
   • Should it be updated as part of the transaction? No.

2. Register of Security Interests (ROSI)

   • What does it do? Records whether security has been granted by a limited partner over its interest in an ELP.
   • When is it relevant? When the status of limited partnership interests in the ELP are relevant to the transaction (e.g. if they are the subject of the security package). There is often discussion as to whether this register is relevant for subscription facilities, but given security is taken over unfunded commitments for such facilities (i.e. the investors would not have assigned / secured the obligation to make the contribution) then this is not always a due diligence step taken.
   • Should it be updated as part of the transaction? Yes, if security is being granted over a limited partner's interest in the ELP.

Entity structures and applicable Cayman registers – Borrowers / Pledgors / GP/ UGP

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.