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Title: |
Escrow Agreement |
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Entities: |
Citibank, NA; Citigroup Global Markets Inc.; Sea Containers Ltd.; Citigroup Inc. |
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Date: |
2004 |
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Size: |
Preview shows 12KB of 48KB total |
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Price: |
$40 |
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ID: |
#316043 |
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SEA CONTAINERS LTD
as the company
citicorp trustee company limited
as the trustee
CITIBANK, N.A.
AS Custodian
And
CITIBANK INTERNATIONAL PLC
AS AGENT
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ESCROW AGREEMENT
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{PAGE}
CONTENTS
Clause Page
1. Interpretation..........................................................1
2. Appointment.............................................................3
3. Custodian Accounts Charge...............................................3
4. Establishment Of Escrow Accounts........................................3
5. Escrow Amount...........................................................3
6. Operating/Release Procedure.............................................3
7. Authorised Representative...............................................4
8. Indemnity...............................................................5
9. Custodian...............................................................5
10. Safekeeping.............................................................7
11. Representations And Warranties..........................................7
12. Local Conditions/Force Majeure..........................................7
13. Replacement Of Custodian................................................7
14. Fees And Expenses.......................................................8
15. Notices.................................................................9
16. General................................................................10
17. Termination............................................................11
SCHEDULE 1 .........................................................12
Part A Authorised Representatives...............................12
Part B Callback Contacts........................................12
SCHEDULE 2 RULES....................................................14
SCHEDULE 3 FORM OF TRANSFER INSTRUCTION.............................16
{PAGE}
THIS ESCROW AGREEMENT (the "Agreement") is dated ___ December 2003.
BETWEEN:
(1) SEA CONTAINERS LTD, a Bermuda exempted company of registered address 22
Victoria Street, Hamilton HM12, Bermuda (the "Company");
(2) CITICORP TRUSTEE COMPANY LIMITED as trustee for and on behalf of the
Secured Parties (the "Trustee") of Citigroup Centre, Canada Square,
Canary Wharf, London E14 5LB, attention: Agency and Trust (fax number:
+44 207 500 5857);
(3) CITIBANK, N.A., located at Citigroup Centre, Canada Square, Canary Wharf,
London E14 5LB (the "Custodian"); and
(4) CITIBANK INTERNATIONAL PLC as agent of the other Finance Parties (the
"Agent") of Citigroup Centre, 33 Canada Square, Canary Wharf, London E14
5LB, attention: Loans Agency (fax number: +44 207 500 4482 / 44 84).
WHEREAS:
The Company has requested the Custodian to open and operate an escrow account in
accordance with the terms of this Agreement to hold various securities on a
safekeeping basis.
IT IS AGREED as follows:
1. INTERPRETATION
1.1 In this Escrow Agreement, terms defined in the Facility Agreement shall,
unless otherwise defined herein, have the same meaning herein and unless
the context otherwise requires:
"Agent Transfer Instruction" means a Transfer Instruction in
substantially the same form as set out in Schedule 3, Part A.
"Amendment Agreement" means the amendment to the Facility Agreement dated
on or about the date of this Agreement.
"Authorised Representatives" shall mean the persons set out in Part A
(Authorised representative) of Schedule 3, as amended pursuant to Clause
6 (Operating/Release Procedure).
"Business Day" means a day on which banks, including but not limited to
the Custodian, are open for normal business in London.
"Callback Contact" means:
(a) any Authorised Representative; and
(b) the persons set out in Part B (Callback contracts) of Schedule 3,
as amended pursuant to Clause 6 (Operating/Release Procedure).
"Company Transfer Instruction" means a Transfer Instruction in
substantially the same form as set out in Schedule 3, Part B.
1
{PAGE}
"Custodian" means Citibank, N.A.;
"Custodian Accounts Charge" means the custodian accounts charge dated on
or about the date hereof between Sea Containers Ltd., Citibank, N.A. and
Citicorp Trustee Company Limited.
"Custodian Account" means the Custody Account as defined in the Custodian
Accounts Charge.
"Escrow Amount" means at any time, the lesser of:
(i) the cost to the Custodian of replacement of the Shared
Shares credited to the Custodian Account at such time; and
(ii) the market value of the Secured Shares credited to the
Custodian Account at such time.
"Facility Agreement" means the US$ 158,000,000 secured bridge loan
facility agreement dated 10 June 2003 (as amended from time to time
thereafter, including by the Amendment Agreement) between, amongst
others, Sea Containers British Isles Limited as Borrower and Citicorp
Trustee Company Limited as Trustee.
"Notice of Transfer" means a notice in substantially the form attached as
Exhibit A or Exhibit B to the Custodian Accounts Charge.
"Party" means a party to this Agreement.
"Rules" means the relevant rules from time to time of the Financial
Services Authority being as at the date of this Agreement the rules set
out in Schedule 4 (Rules).
"Secured Obligations" has the meaning ascribed to it in the Facility
Agreement.
"Transfer Instruction" means an Agent Transfer Instruction and a Company
Transfer Instruction by which the Custodian is instructed to transfer the
Secured Shares from the Custodian Account.
1.2 Construction
1.2.1 the singular includes the plural (and vice versa);
1.2.2 headings are for convenience only and do not affect the
construction of this Agreement;
1.2.3 references to Clauses and Schedules are to Clauses and Schedules
to this Agreement;
1.2.4 reference to any agreement or document includes amendments and
replacements of and supplements to such agreement or document;
1.2.5 references to any person include successors of such person and its
permitted assignees and transferees; and
1.2.6 all references to an account include all replacement accounts for
such account.
2
{PAGE}
2. APPOINTMENT
The Company designates and appoints the Custodian as Custodian and the
Custodian accepts such designation and appointment in accordance with and
limited to the terms and conditions of this Agreement. The term
"Custodian" shall include the Custodian for the time being and all its
successors further to the provisions of Clause 13 (Replacement of
Custodian).
3. CUSTODIAN ACCOUNTS CHARGE
The terms of this Agreement shall be subject to the terms of the
Custodian Accounts Charge and all rights hereunder shall be construed
accordingly.
4. ESTABLISHMENT OF ESCROW ACCOUNTS
The Custodian confirms that it has opened the Custodian Account.
5. ESCROW AMOUNT
5.1 The Custodian shall receive from the Company on or before the date hereof
the Secured Shares into the Custodian Account.
5.2 The Custodian is not obliged to credit the Secured Shares to the
Custodian Account until such time as the Custodian is satisfied that it
has received such Secured Shares.
5.3 The Custodian shall have sole discretion to accept or reject, for
deposit, any Secured Shares.
5.4 The Custodian shall have no responsibility for the exercising of any
voting rights or other powers and rights conferred on or exercisable by
the Assignor in relation to the Secured Shares.
6. OPERATING/RELEASE PROCEDURE
6.1 The Custodian shall only release the Secured Shares or any portion
thereof to any party (including the Company):
6.1.1 at the direction of the Agent in accordance with an Agent Transfer
Instruction;
6.1.2 in accordance with a duly completed Notice of Transfer;
6.1.3 in accordance with a Company Transfer Instruction provided that
the Custodian has received notice from the Agent that the Secured
Obligations have been discharged and paid in full; or
6.1.4 in accordance with the Dematerialisation Process.
3
{PAGE}
6.2 Each Transfer Instruction shall be signed by an Authorised Representative
of the Agent and / or the Company, as the case may be.
6.3 The Agent shall inform the Custodian upon the Secured Obligations being
discharged and paid in full.
6.4 The Company acknowledges that it is responsible for submitting, or
arranging for the submission of each Company Transfer Instruction to the
Agent at the same time as it submits such Company Transfer Instruction to
the Custodian.
6.5 The Agent shall use its reasonable endeavours to review each Company
Transfer Instruction received by it in accordance with Clause 6.1 within
24 hours of receipt and following such review shall either (a)
countersign the Company Transfer Instruction and transmit the same to the
Custodian or (b) notify the Custodian and the Company that it will not be
counter-signing the Company Transfer Instruction.
6.6 All Transfer Instructions shall be received by the Custodian at least by
12 noon (London time) 1 clear Business Day before the date on which the
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