COLLATERAL AGENT AGREEMENT
This Collateral Agent Agreement ("Collateral Agent Agreement") dated
as of May 15, 1998 by and among COMMONWEALTH DEVELOPMENT CORPORATION ("CDC"),
DEG-DEUTSCHE INVESTITIONS UND ENTWICKLUNGSGESELLSCHAFT MBH ("DEG"),
EXPORT-IMPORT BANK OF THE UNITED STATES ("Ex-Im"), INTERNATIONAL FINANCE
CORPORATION ("IFC") and OVERSEAS PRIVATE INVESTMENT CORPORATION ("OPIC";
collectively "Development Banks"), and SIERRA RUTILE HOLDINGS LIMITED
("Holdings") and CHASE MANHATTAN BANK ("Collateral Agent").
WHEREAS, Holdings owns 38,685,017 ordinary shares ("Shares") of Sierra
Rutile Limited ("SRL"), representing 100% of the issued and outstanding shares
of SRL; and
WHEREAS, the Development Banks have made certain loans to SRL pursuant
to various loan agreements, as amended ("Loan Agreements"); and
WHEREAS, Holdings has executed a Stock Pledge Agreement ("Pledge
Agreement"), pledging the SRL Shares to the Development Banks; and
WHEREAS, the Development Banks and Holdings have agreed that
Collateral Agent shall act as the collateral agent pursuant to the Pledge
Agreement; and
NOW, THEREFORE, it is hereby agreed as follows:
1. DESIGNATION OF COLLATERAL AGENT. Development Banks hereby
designate and appoint Collateral Agent as Collateral Agent to serve in
accordance with the terms of this Collateral Agent Agreement. The Collateral
Agent hereby accepts such appointment and agrees to act as Collateral Agent
pursuant to the terms and conditions of this Collateral Agent Agreement.
2. ACKNOWLEDGEMENT OF RECEIPT. The Collateral Agent hereby
acknowledges receipt of the certificates representing the Shares, copies of
which are annexed hereto as Exhibit A together with stock Transfer thereof
("Transfer") executed in blank, copies of which are annexed hereto as Exhibit B,
and agrees to hold and dispose of the Shares and Transfer in accordance with the
terms and conditions of this Collateral Agent Agreement and the Pledge
Agreement.
3. DISPOSITION OF SHARES AND TRANSFER. In the event that
Collateral Agent receives any notice jointly from the Development Banks
requesting that the Shares and Transfer be delivered either (a) to the
Development Banks or any of them or their designees or (b) to Holdings,
Collateral Agent shall promptly thereafter deliver the Shares in accordance with
such notice, provided, however, that if such notice requests delivery pursuant
to subdivision (a) above, the Collateral Agent shall give to Holdings five (5)
business days prior written notice thereof before
making such delivery, unless the Banks, in their notice notify the Collateral
Agent that (i) they would be harmed by waiting such period or (ii) such notice
has been waived by Holdings.
4. LIABILITY; INDEMNIFICATION. (a) The parties hereto agree that
the duties of the Collateral Agent hereunder are purely ministerial in nature
and that the Collateral Agent shall incur no liability hereunder or otherwise
(except in the event of a final adjudication of willful misconduct or gross
negligence) for any action taken by it hereunder or for any failure or refusal
to act pursuant to any notice, direction or instructions which it may receive
from any party hereto or for any other matter. The Collateral Agent shall be
under no responsibility with respect to the Shares and Transfer other than
faithfully to follow the instructions herein contained. The Collateral Agent
shall have no responsibility to determine the authenticity or validity of any
notice, direction, instruction, document or other item delivered to it, and it
shall be fully relieved of any liability in acting in accordance with any
written notice, direction or instruction given to it under this Collateral Agent
Agreement and believed by it, in its subjective judgment, to be authentic.
(b) Unless the Collateral Agent shall have been finally adjudicated
guilty of willful misconduct or gross negligence, Holdings agrees to indemnify
and hold harmless the Collateral Agent from and against any liability incurred
by it hereunder including reasonable attorneys fees and expenses (which
obligation shall survive the closing of the Collateral Agent Agreement). The
Collateral Agent shall not be required to defend any legal proceedings which may
be instituted against it with respect to the subject matter of this Collateral
Agent Agreement unless requested to do so by the Development Banks or Holdings
and indemnified to its satisfaction against the cost and expenses of such
defense.
(c) Anything in this Collateral Agent Agreement to the contrary
notwithstanding, in no event shall the Collateral Agent be liable for special,
indirect or consequential loss or damage of any kind whatsoever (including but
not limited to lost profits), even if the Collateral Agent has been advised of
the likelihood of such loss or damage and regardless of the form of action.
5. COMPENSATION OF COLLATERAL AGENT. All compensation to Collateral
Agent shall be paid by Holdings to Collateral Agent in accordance with the terms
set forth on Schedule 1 annexed hereto, and Holdings and Collateral Agent agree
that the Development Banks shall not have any liability therefor.
6. TERMINATION OF AGREEMENT. This Collateral Agent Agreement shall
terminate and the Collateral Agent shall be fully released and discharged from
all obligation and liability hereunder, upon the delivery of the Shares and
Transfer as provided herein.
7. NOTICES. All notices, requests and other communications under
this Collateral Agent Agreement shall be in writing and shall be personally
delivered, sent by first class registered or certified mail, postage prepaid,
return receipt requested, or sent by United States Express Mail or overnight
courier service, addressed as follows:
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To Holdings: Sierra Rutile Holdings Limited
x/x Xxxxxx Xxxxxx Xxxxxxx
x/x XXX (XXX) Mineral Sands
0000 Xxxxxx Xxxx
Xxxxx Xxxx Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xx. Xxxxxxx X. XxXxxxxx
Acting Chief Executive
Facsimile: (000) 000-0000
To CDC: Commonwealth Development Corporation
Xxx Xxxxxxxxxxx Xxxxxxx
Xxxxxx XX0 X0XX Xxxxxxx
Telex: 21431/25849
Facsimile: 000-00-000 828-6505
To DEG: DEG-Deutsche Investitions-und
Entwicklungsgesellschaft mbH
Xxxxxxxxxxxxxxx 00
D-50933 Cologne 41 (Mungersdorf) Germany
Attention: Xx. Xxxxx Xxxxxxx
Telex: 8 881 949 DEG D
Facsimile: 011-49 221 4986-105/6
To Ex-Im: Export-Import Bank of the United States
000 Xxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Xxxxxx Xxxxxx of America
Attention: Xx. Xxxxxxx X. Xxxxxx
Telex: 197681 EXIM UT
Facsimile: (000) 000-0000
To IFC International Finance Corporation
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Xxxxxx Xxxxxx of America
Attention: Director, Department of Investment,
Oil, Gas & Mining
Facsimile: (000) 000-0000
with a copy (in the case of notices relating to
payments) sent to the attention of the Manager,
Accounting Division, at:
Facsimile: (000) 000-0000
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To OPIC: Overseas Private Investment Corporation
0000 Xxx Xxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Xxxxxx Xxxxxx of America
Attention: Vice President, Finance
Re: Sierra Rutile
Facsimile: (000) 000-0000
To Collateral Agent: Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Escrow Administration, 15th Floor
Facsimile: (000) 000-0000
or at such other address, and to the attention of such person, of which any
party hereof shall have given notice as herein provided.
Notices shall be deemed received on the date of delivery if personally
delivered, three (3) days after mailing if mailed in accordance with the
provisions hereof or on the next business day if sent by United States Express
Mail or overnight courier service.
8. SUCCESSOR COLLATERAL AGENTS. The Collateral Agent, or any
successor to it hereafter appointed, may at any time resign by giving notice in
writing to the parties hereto and shall be discharged from its duties upon the
appointment of a successor Collateral Agent as hereinafter provided, or upon the
expiration of sixty (60) days after such notice is given. In the event of any
such resignation, a successor Collateral Agent, which shall be a bank or trust
company established under the laws of the United States of America or any state
thereof having combined capital, surplus and undivided profits of not less than
$100,000,000 and having trust powers shall be appointed by the Banks with the
written consent of Holdings. Any successor Collateral Agent shall deliver to
the other parties hereto and the Collateral Agent a written instrument accepting
the appointment hereunder, and thereupon it shall succeed to all the rights and
duties of the Collateral Agent hereunder and shall be entitled to receive the
Shares and Transfer then held by the predecessor Collateral Agent hereunder. In
the event that the parties hereto do not appoint a successor Collateral Agent
within sixty (60) days, Collateral Agent shall deposit the Shares and Transfer
into a court of competent jurisdiction and, from and after the date such deposit
is made, the Collateral Agent shall be released and discharged of all
obligations with respect thereto.
9. MISCELLANEOUS.
(a) This Collateral Agent Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
(b) Neither this Collateral Agent Agreement nor any of the provisions
hereof may be waived, modified, amended, discharged or terminated except by an
instrument in writing signed by all parties hereto, and then only to the extent
set forth in such instrument.
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(c) This Collateral Agent Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, and all of which shall
constitute a single instrument. Facsimile copies hereof shall be deemed to be
originals for all purposes hereunder.
(d) This Collateral Agent Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors,
assigns and personal representatives.
(e) The descriptive headings of the several Sections of this
Collateral Agent Agreement are inserted for convenience only, do not constitute
a part of this Collateral Agent Agreement and shall not affect in any way the
meaning or interpretation of this Collateral Agent Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first set forth above.
SIERRA RUTILE HOLDINGS LIMITED
By: /s/ [ILLEGIBLE]
-------------------------------
Authorized Representative
Name: [ILLEGIBLE]
Title: Acting Chief Executive
COMMONWEALTH DEVELOPMENT
CORPORATION
By: /s/ [ILLEGIBLE]
-------------------------------
Authorized Representative
Name: [ILLEGIBLE]
Title: Investment Manager
DEG-DEUTSCHE INVESTITIONS-UND
ENTWICKLUNGSGESELLSCHAFT mbH
By: /s/ [ILLEGIBLE]
-------------------------------
Authorized Representative
Name: [ILLEGIBLE]
Title:
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XXXXXX-XXXXXX XXXX XX XXX XXXXXX XXXXXX
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Authorized Representative
Name: Xxxxxxx X. Xxxxxx
Title: Acting Vice President
Asset Management Division
INTERNATIONAL FINANCE CORPORATION
By: /s/ [ILLEGIBLE]
-------------------------------
Authorized Representative
Name:
Title:
OVERSEAS PRIVATE INVESTMENT CORPORATION
By: /s/ Xxxx X. Xxxxxxx
-------------------------------
Authorized Representative
Name: Xxxx X. Xxxxxxx
Title: Senior Investment Officer
CHASE MANHATTAN BANK
By: /s/ [ILLEGIBLE]
-------------------------------
Authorized Representative
Name: [ILLEGIBLE]
Title: Assistant Vice President
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