XXXXXXXX Limited Liability Partnership
CHANCE
Execution copy
2 JULY 2004
sea containers ltd
as Parent
and
CITICORP TRUSTEE COMPANY LIMITED
as Trustee
and
THE SUBORDINATED CREDITORS
named herein
and
the INTRA-GROUP BORROWERS
named herein
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SUBORDINATION AGREEMENT
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CONTENTS
Clause Page
1. Definitions And Interpretation..........................................1
2. Ranking.................................................................3
3. Undertakings Of The Intra-Group Borrower................................3
4. Undertakings Of The Subordinated Creditors..............................3
5. Permitted Payments......................................................4
6. Turnover Of Non-Permitted Payments......................................5
7. Subordination On Insolvency.............................................5
8. Treatment Of Distributions..............................................6
9. Enforcement By Subordinated Creditors...................................7
10. Consents................................................................7
11. Information.............................................................8
12. Protection Of Subordination.............................................8
13. No Rights In Favour Of Parent Or Borrower..............................10
14. Power Of Attorney......................................................10
15. Changes To The Parties.................................................11
16. Expenses, Stamp Duty, Set-Off And Interest.............................11
17. Rights, Amendments, Waivers, Consents And Determinations...............12
18. Communications.........................................................13
19. Miscellaneous..........................................................13
20. Indemnities............................................................13
21. Governing Law..........................................................14
SCHEDULE 1 INTRA-GROUP BORROWERS.............................................15
SCHEDULE 2 SUBORDINATED CREDITORS............................................16
THIS SUBORDINATED AGREEMENT is made by way of Deed on 2 July 2004
BETWEEN:
(1) SEA CONTAINERS LTD a Bermuda exempted company (registered number: EC03631)
of registered address 00 Xxxxxxxx Xxxxxx, Xxxxxxxx XX00, Xxxxxxx (xxx
"Parent");
(2) CITICORP TRUSTEE COMPANY LIMITED of Citigroup Centre, Canada Square, Xxxxxx
Xxxxx, Xxxxxx X00 0XX as trustee for and on behalf of the Senior Creditors
(the "Trustee");
(3) Citibank International plc of Citigroup Centre, Canada Square, Xxxxxx
Xxxxx, Xxxxxx X00 0XX as agent for and on behalf of the Finance Parties
other than the Trustee (the "Agent");
(4) THE COMPANIES whose names are set out in Schedule 1 as intra-group
borrowers, (the "Intra-Group Borrowers"); and
(5) THE COMPANIES whose names are set out in Schedule 2 as subordinated
creditors, (the "Subordinated Creditors").
RECITALS
(A) The Intra-Group Borrowers have agreed that, subject to the terms and
conditions of this Deed, the Intra-Group Liabilities shall be subordinated
in right of payment to the Senior Debt.
(B) The parties to this Subordination Agreement intend that it shall take
effect as a deed.
(C) This Subordination Agreement shall replace the Original Subordination
Agreement.
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions In this Deed, terms defined and references construed in the
Senior Facility Agreement shall have the same meaning and construction and,
except to the extent that the context requires otherwise:
"Effective Date" means 2 July 2004.
"Intra-Group Liabilities" means all present and future sums, liabilities
and obligations whatsoever (actual or contingent) which is or may at any
time become due, owing or payable or expressed to be due, owing or payable
by an Intra-Group Borrower to a Subordinated Creditor but not including
ordinary trading liabilities.
"Original Subordination Agreement" means the subordination agreement dated
22 December 2003 between the Parent, the Trustee and the companies listed
in Schedule 1 and 2 to this Agreement, as amended from time to time prior
to the date of this Agreement.
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"Permitted Payments" means payments and receipts permitted by Clause 5
(Permitted Payments).
"SCL Bonds" means the 10.75% and 13% senior notes due 2006 issued by the
Parent.
"Senior Creditors" means the Lenders, the Agent and the Arrangers as
defined in the Senior Facility Agreement.
"Senior Debt" means the indebtedness of the Intra-Group Borrowers to the
Senior Creditors under or in connection with the Senior Finance Documents.
"Senior Discharge Date" means the first date on which all Senior Debt has
been fully and irrevocably paid or discharged and no further Senior Debt is
capable of becoming outstanding.
"Senior Facility Agreement" means the $158,000,000 secured bridge loan
facility agreement dated 10 June 2003 between, among others, the Parent,
the Borrower, the lenders named therein and the Trustee, as amended and
restated on 22 December 2003 and as further amended prior to the date of
this Agreement.
"Senior Finance Documents" means the Senior Facility Agreement, the
Security Documents and any other item referred to in the definition of
"Finance Documents" in the Senior Facility Agreement.
"Subordinated Finance Documents" means any and all agreements and other
instruments under or by which any Intra-Group Liabilities are outstanding,
evidenced, secured or guaranteed in each case as, and including any
instrument pursuant to which the same is, novated, varied, supplemented or
amended from time to time.
1.2 Construction Except to the extent that the context requires otherwise, any
reference in this Deed to:
1.2.1 any "document" (including this Deed) is a reference to that document
as from time to time amended, supplemented, novated, restated or
replaced and includes a reference to any document which amends,
supplements, novates, restates or replaces, or is entered into, made
or given under or in accordance with any of the terms of, that
document;
1.2.2 a"person" includes any individual, company, corporation, firm,
partnership, joint venture, undertaking, association, organisation,
trust, state or agency of a state (in each case, whether or not
having separate legal personality);
1.2.3 "Tax(es)" includes any present or future tax, levy, impost, duty,
charge, fee, deduction or withholding of any nature and whatever
called, by whomsoever and wherever imposed, levied, collected,
withheld or assessed;
1.2.4 the "Winding-up" of a person also includes the amalgamation,
reconstruction, administration, dissolution, liquidation, merger or
consolidation of that person, and any equivalent or analogous
procedure under the law of any jurisdiction.
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2. RANKING
Each of the Subordinated Creditors and each of the Intra-Group Borrowers
hereby agrees and acknowledges that the Intra-Group Liabilities are
subordinated to the Senior Liabilities.
3. UNDERTAKINGS OF THE INTRA-GROUP BORROWER
Until the Senior Discharge Date, except with the consent of the Trustee:
3.1 No Payments
Subject to Clause 7 (Subordination on Insolvency), no Intra-Group Borrower
shall pay, prepay, repay or make any distribution in respect of, or
purchase or acquire, any of the Intra-Group Liabilities in cash or in kind,
save to the extent permitted or contemplated by Clause 5 (Permitted
Payments).
3.2 Subsidiaries
The Parent shall ensure that none of its Subsidiaries purchases or acquires
any of the Intra-Group Liabilities, save to the extent permitted or
contemplated by Clause 5 (Permitted Payments).
3.3 No Set-off
No Intra-Group Borrower shall exercise any set-off against any of the
Intra-Group Liabilities, except to the extent that payment of that
Intra-Group Liabilities would constitute a Permitted Payment.
3.4 No Security
No Intra-Group Borrower shall create or have outstanding any Security over
any of its assets for, or any guarantee for, or in respect of, any of the
Intra-Group Liabilities.
3.5 No Other Action
No Intra-Group Borrower shall take or omit to take any action whereby the
ranking and/or subordination contemplated by this Deed may be impaired.
4. UNDERTAKINGS OF THE SUBORDINATED CREDITORS
Until the Senior Debt Discharge Date, except with the consent of the
Trustee:
4.1 No Payments
Subject to Clause 7 (Subordination on Insolvency), no Subordinated Creditor
will demand or receive payment, prepayment, repayment or any distribution
in respect of any of the Intra-Group Liabilities owed to it in cash or in
kind or apply any money or property in or towards discharge of any of the
Intra-Group Liabilities owed to it save to the extent permitted or
contemplated by Clause 5 (Permitted Payments).
4.2 No Set-off
No Subordinated Creditor will exercise any set-off against any Intra-Group
Liabilities owed to it, except to the extent that payment of those
Intra-Group Liabilities would constitute a Permitted Payment.
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4.3 No Security
No Subordinated Creditor will permit to subsist or receive any Security or
guarantee for, or in respect of, any of the Intra-Group Liabilities owed to
it.
4.4 No Other Action
No Subordinated Creditor will take or omit to take any action whereby the
ranking and/or subordination contemplated by this Deed may be impaired.
4.5 No Ranking
No Subordinated Creditor will claim or rank as a creditor in the
insolvency, Winding-up, bankruptcy or liquidation of any Intra-Group
Borrower.
4.6 No Negotiable Instrument
No Subordinated Creditor will permit any of the Intra-Group Liabilities
owed to it to be evidenced by a negotiable instrument unless that
instrument is endorsed with this subordination or is deposited with the
Trustee.
4.7 No Cancellation
No Subordinated Creditor will transfer any of the Intra-Group Liabilities
owed to it or any commitment to provide any of the Intra-Group Liabilities.
5. PERMITTED PAYMENTS
5.1 Permitted Payments
Subject to Clauses 5.2 (Suspension of Permitted Payments) and 7
(Subordination on Insolvency), an Intra-Group Borrower may pay Intra-Group
Liabilities, and a Subordinated Creditor may receive and retain payment in
respect of Intra-Group Liabilities owed to it, to the extent that such
payment:
5.1.1 is permitted and made subject to and in accordance with the
provisions of clause 21 (General Undertakings) of the Senior
Facility Agreement; or
5.1.2 is made in accordance with Clause 7.2 (Filing of Claims) or 7.3
(Filing by Parent) after the occurrence of an event described in
Clause 7.1 (Subordination Events).
5.2 Suspension of Permitted Payments
Except in the case of:
(a) a payment made in accordance with Clause 7.2 (Filing of Claims) or 7.3
(Filing by a Subordinated Creditor); or
(b) a payment of any Indebtedness by a Material Subsidiary to the Company
or any Subsidiary or the payment of dividends by a Material Subsidiary
(and for the purposes of this Clause 5.2(b), the terms "Material
Subsidiary", "Company", "Subsidiary" and "Indebtedness" shall have the
meaning ascribed to them in the SCL Bonds);
after the occurrence of an event described in Clause 7.1
(Subordination Events), no payment or receipt shall constitute a
Permitted Payment if an event of default, potential event of default
or other termination event under any Senior Finance Document has
occurred or occurs as a result of that payment.
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5.3 Set-off
In this Clause 5, a payment or receipt includes a discharge by set-off.
6. TURNOVER OF NON-PERMITTED PAYMENTS
6.1 Trust
If at any time a Subordinated Creditor receives a payment of the kind
described in Clause 6.2 (Non-Permitted Payments), that Subordinated
Creditor will notify the Trustee of such receipt and will hold it in trust
for the Senior Creditors, and pay and distribute it, or (in the case of a
set-off) pay an equivalent amount, on demand to, the Trustee for
application in or towards the Senior Debt until the Senior Discharge Date
(provided that nothing in this Clause shall be deemed to create a charge).
6.2 Non-Permitted Payments
The payments to which Clause 6.1 (Trust) refers are as follows:
6.2.1 receipt by a Subordinated Creditor of a payment (including by way of
set-off) or distribution in cash or in kind of, or on account of,
any Intra-Group Liabilities other than a Permitted Payment;
6.2.2 receipt by a Subordinated Creditor (including by way of set-off) of
the proceeds of enforcement of any Security, or payment under any
guarantee, for any Intra-Group Liabilities; or
6.2.3 the making by an Intra-Group Borrower or any of its Subsidiaries of
any payment or distribution, in cash or in kind, on account of the
purchase or any acquisition of any Intra-Group Liabilities.
7. SUBORDINATION ON INSOLVENCY
7.1 Subordination Events
Until the Senior Discharge Date, if:
7.1.1 any resolution is passed or order made or proceedings commenced for
the Winding-up (whether solvent or insolvent) of an Intra-Group
Borrower;
7.1.2 an Intra-Group Borrower makes a general assignment or an arrangement
or composition for the benefit of all (or a particular type of) its
creditors;
7.1.3 a moratorium is agreed or declared in respect of or affecting all or
a material part of the indebtedness of an Intra-Group Borrower,
the following provisions of this Clause 7 shall apply.
7.2 Filing of Claims
The Trustee may, and is irrevocably authorised on behalf of each
Subordinated Creditor to:
7.2.1 claim, enforce and prove for the Intra-Group Liabilities;
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7.2.2 file claims and proofs, give receipts and take all such proceedings
in respect of filing such claims or proofs and do all such things as
the Trustee sees fit to recover the Intra-Group Liabilities; and
7.2.3 receive all distributions of the Intra-Group Liabilities for
application towards the Senior Debt.
7.3 Filing by a Subordinated Creditor
If and to the extent that, the Trustee is not entitled, or elects not, to
take any of the action described in Clause 7.2 (Filing of Claims), the
relevant Subordinated Creditor will do so promptly on request by the
Trustee.
7.4 Distributions
Until the Senior Discharge Date:
7.4.1 each Subordinated Creditor will hold all payments and distributions
in cash or in kind received or receivable by it in respect of the
Intra-Group Liabilities from another Subordinated Creditor or its
estate or from any other source in trust for the Senior Creditors
and will pay and distribute it on demand or, in the case of a
set-off, pay an amount equal to that payment or distribution on
demand, to the Trustee for application towards the Senior Debt
(provided that nothing in this Clause shall be deemed to create a
charge);
7.4.2 each Subordinated Creditor hereby directs the trustee in bankruptcy,
liquidator, assignee or other person distributing the assets of each
Subordinated Creditor or their proceeds to pay distributions in
respect of the Intra-Group Liabilities directly to the Trustee; and
7.4.3 each Subordinated Creditor will promptly do whatever the Trustee
requests to give effect to this Clause 7.4.
8. TREATMENT OF DISTRIBUTIONS
8.1 Realisation
If the Trustee receives any distribution otherwise than in cash in respect
of the Intra-Group Liabilities from an Intra-Group Borrower or any other
source, it may deal with and/or apply the distribution as it sees fit. The
Senior Debt shall not be reduced by the distribution until and except to
the extent that any net realisation proceeds are applied towards the Senior
Debt.
8.2 Transfer of distributions
Each Subordinated Creditor will at its own expense do all such things as
the Trustee may reasonably require as being necessary or desirable to
transfer to the Trustee all payments and distributions which must be turned
over to the Trustee or held in trust for the Senior Creditors, including
endorsements and execution of formal transfers, and will pay all costs and
stamp duties in connection therewith.
8.3 Failure of trust
If a trust in favour of, or a holding of property for, the Senior Creditors
under this Deed is invalid or unenforceable, each Subordinated Creditor
will pay and deliver to the Trustee an amount equal to the payment, receipt
or recovery in cash, or in kind, which each Subordinated Creditor would
otherwise have been bound to hold on trust for or as property of the Senior
Creditors.
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9. ENFORCEMENT BY SUBORDINATED CREDITORS
Until the Senior Discharge Date, except with the written consent of the
Trustee, no Subordinated Creditor will:
9.1 No Acceleration
Accelerate any of the Intra-Group Liabilities owed to it or otherwise
declare any of the Intra-Group Liabilities owed to it prematurely due or
payable by reason of any default or otherwise.
9.2 No Attachment
Enforce any of the Intra-Group Liabilities owed to it by way of attachment,
set-off, execution or otherwise.
9.3 No Creditor Process
Xxx for, petition, or institute any process (including an injunction,
specific performance, garnishment, execution or levy, whether before or
after judgment) against an Intra-Group Borrower or its assets in respect
of, any obligation (whether or not for the payment of money) owing to it in
respect of any of the Intra-Group Liabilities.
9.4 No Insolvency Proceedings
Initiate or support or take any steps with a view to any Winding-up
proceedings or any voluntary arrangement or assignment for the benefit of
creditors or any similar proceedings involving an Intra-Group Borrower or
its assets, whether by petition, convening a meeting, voting for a
resolution or otherwise.
10. CONSENTS
10.1 No Objection
No Subordinated Creditor shall have any remedy against an Intra-Group
Borrower or any Senior Creditor by reason of the entry by any of them into
any Senior Finance Document, or any other agreement between any Senior
Creditor and an Intra-Group Borrower, or any waiver or consent, or any
requirement or condition imposed by or on behalf of any Senior Creditor on
an Intra-Group Borrower under any Senior Finance Document, or such other
agreement, which violates or is or causes an event of default or potential
event of default (however described) under any Subordinated Finance
Document. No Subordinated Creditor may object to any such matter by reason
of any provision of any Subordinated Finance Document.
10.2 Waivers
Any waiver or consent by or on behalf of any or all of the Senior Creditors
under any Senior Finance Document (including any waiver of any breach or
default or condition precedent, and any consent to any extension of
availability of the Senior Debt) will be deemed also to have been given by
a Subordinated Creditor (on the same terms and conditions, with appropriate
changes) if any transaction or circumstance would, in the absence of that
waiver or consent by a Subordinated Creditor, violate or contravene any
Subordinated Finance Document or constitute an event of default or
potential event of default (however described) under any Subordinated
Finance Document or lead to unavailability of any of the Intra-Group
Liabilities.
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11. INFORMATION
11.1 Defaults
The Parent will promptly notify the Trustee of the occurrence of any event
of default or potential event of default (however described) (if any) under
any Subordinated Finance Document.
11.2 Amount of Intra-Group Liabilities
The Parent will on written request by the Trustee from time to time notify
the Trustee in writing of details of the amount of the Intra-Group
Liabilities and give the Trustee copies of all Subordinated Finance
Documents as soon as entered into by any Subordinated Creditor or
Intra-Group Borrower.
12. PROTECTION OF SUBORDINATION
12.1 Continuing Subordination
The subordination provisions in this Deed shall:
12.1.1 remain in full force and effect by way of continuing
subordination; and
12.1.2 not be affected in any way by any settlement of account (whether
or not any Senior Debt remains outstanding) or other matter or
thing whatsoever.
12.2 Subordination Unaffected
Without prejudice to the generality of Clause 12.1 (Continuing
Subordination), neither the subordination in this Deed nor the obligations
of a Subordinated Creditor shall be affected in any way by:
12.2.1 any time, indulgence, concession, waiver or consent given to, or
composition with, an Intra-Group Borrower or any other person,
whether by the Trustee or any other person;
12.2.2 any amendment to or change in any Security, guarantee or
indemnity, or the terms of any of the Intra-Group Liabilities or
Senior Debt;
12.2.3 the making or absence of any demand for payment of any of the
Intra-Group Liabilities or Senior Debt or an Intra-Group Borrower
or any other person, whether by a Subordinated Creditor or the
Trustee or any other person;
12.2.4 the enforcement or absence of enforcement of any Security,
guarantee or indemnity or any rights under the Intra-Group
Liabilities or Senior Debt;
12.2.5 the taking, existence or release of any other Security, guarantee
or indemnity;
12.2.6 the Winding-up of an Intra-Group Borrower or any other person, or
any step being taken for any such Winding-up; or
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12.2.7 the illegality, invalidity or unenforceability of, or any defect
in, any provision of any agreement or document relating to the
Intra-Group Liabilities or Senior Debt or any Security, guarantee
or indemnity (including any Subordinated Finance Document or
Senior Finance Document) or any of the rights or obligations of
any of the parties under or in connection with any such document
or any Security, guarantee or indemnity (including any
Subordinated Finance Document or Senior Finance Document).
12.3 Immediate recourse
Each Subordinated Creditor waives any right it may have of requiring the
Trustee or any Senior Creditor to proceed against or enforce any other
right or security or claim payment from any person before claiming the
benefit of this Deed.
12.4 Exercise of the Subordinated Creditor Rights Until the Senior Discharge
Date:
12.4.1 any rights of a Subordinated Creditor, by reason of the
performance or enforcement of any of its obligations under Clause
6 (Turnover of Non-Permitted Payments), 7 (Subordination on
Insolvency) or 8 (Treatment of Distributions), or any other
provision of this Deed, to be indemnified by any person, to prove
in respect of any liability in the Winding-up of any person or to
take the benefit of or enforce any Security, guarantees or
indemnities, shall be exercised and enforced only in such manner
and on such terms as the Trustee may require; and
12.4.2 any amount received or recovered by a Subordinated Creditor (a) as
a result of any exercise of any such rights or (b) in the
Winding-up of any such person, shall be held in trust for and
immediately paid to the Trustee (provided that nothing in this
Clause shall be deemed to create a charge).
12.5 Discharge
Each Subordinated Creditor hereby irrevocably waives any right to
appropriate any payments to, or other sum received, recovered or held by,
the Trustee or any Senior Creditor in or towards discharge of a particular
part of the Senior Debt and agrees that the Trustee shall have the
exclusive right to appropriate any such payment or other sum in accordance
with this Deed.
12.6 Suspense Accounts
Any amount received or recovered by the Trustee, any Senior Creditor, or
any delegate in exercise of its rights under this Deed may be credited to
an interest bearing suspense account. That amount may be kept there (with
any interest earned being credited to that account) until the Trustee or
the Senior Creditors are satisfied that all the Senior Debt has been
discharged in full and that all facilities which might give rise to Senior
Debt have been terminated.
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13. NO RIGHTS IN FAVOUR OF PARENT OR BORROWER
13.1 Preservation of Intra-Group Liabilities
As between the Intra-Group Borrowers and the Subordinated Creditors only,
the Intra-Group Liabilities shall remain owing or due and payable in
accordance with the terms of the Subordinated Finance Documents.
13.2 No Rights
Neither the Intra-Group Borrowers nor the Subordinated Creditors shall have
any rights under this Deed. None of the undertakings in this Deed by the
Trustee are given to or for the benefit of the Intra-Group Borrowers or the
Subordinated Creditors.
13.3 No Liability
Neither the Trustee nor any Senior Creditor will be liable to the
Subordinated Creditors:
13.3.1 for the manner of exercise or for any non-exercise of the powers
of the Trustee under this Deed; or
13.3.2 for failure to collect or preserve the Intra-Group Liabilities,
and none of the undertakings in this Deed on the part of the Subordinated
Creditors are given to or for the benefit of an Intra-Group Borrower.
14. POWER OF ATTORNEY
14.1 Appointment
By way of security for its obligations, each Subordinated Creditor
irrevocably appoints the Trustee as its attorney to do anything which it:
14.1.1 has authorised the Trustee to do under this Deed; and
14.1.2 is required to do by this Deed but has failed to do.
14.2 Delegation
The Trustee may delegate the power of attorney in Clause 14.1
(Appointment).
15. CHANGES TO THE PARTIES
15.1 Successors and assigns
This Deed is binding on the successors and permitted assigns of the parties
to it. Any reference to any party shall be construed accordingly.
15.2 Borrower
No Intra-Group Borrower may assign or transfer any or all of its rights (if
any) or obligations under this Deed.
15.3 Subordinated Creditors
No Subordinated Creditor will at any time before the Senior Discharge Date
(except with the written consent of the Trustee):
15.3.1 assign, novate, transfer or dispose of, or create or permit to
subsist any Security over, or declare or create any trust of, any
or all of the Intra-Group Liabilities owing to it or its proceeds
or any interest in the Intra-Group Liabilities or its proceeds, or
any other rights or obligations under any Subordinated Finance
Document, or any security therefor, or its commitment to provide
the Intra-Group Liabilities to or in favour of any person;
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15.3.2 subordinate any or all of the Intra-Group Liabilities or its
proceeds to any sums owing by an Intra-Group Borrower to any
person other than to the Senior Debt,
unless that person agrees with the parties to this Deed that it is bound by
all the terms of this Deed as a Subordinated Creditor in the same capacity
as the transferring Subordinated Creditor.
15.4 Senior Creditors
The Trustee may assign, novate, transfer or otherwise dispose of all or any
of its rights under this Deed to its successors as Trustee only.
15.5 Memorandum on documents
The Parent will ensure that a memorandum of this Deed will be endorsed on
each Subordinated Finance Document.
16. EXPENSES, STAMP DUTY, SET-OFF AND INTEREST
16.1 Enforcement Expenses
The Parent shall pay to the Trustee on demand, all costs, and expenses
(including Taxes thereon and legal fees) reasonably incurred by the Trustee
or any Senior Creditor in relation to this Deed (including the
administration, protection, realisation or enforcement against an
Intra-Group Borrower or the Parent (as the case may be) of any right under
or in connection with this Deed, or any consideration by the Trustee as to
whether to realise or enforce the same, and/or any such amendment,
supplement, waiver, consent or release).
16.2 Stamp Duty
The Parent shall pay promptly, and in any event before any interest or
penalty becomes payable, any stamp, documentary, registration or similar
Tax (including Land Registry fees) payable in connection with the entry
into, registration, performance, enforcement or admissibility in evidence
of this Deed and/or any such other document, amendment, supplement, waiver,
consent or release and shall indemnify the Trustee and the Senior Creditors
against any liability with respect to or resulting from any delay in paying
or omission to pay any such Tax.
16.3 Set-Off
Each of the Intra-Group Borrowers and the Subordinated Creditors authorise
the Trustee and each Senior Creditor to apply (without prior notice) any
credit balance (whether or not then due) to which it is at any time
beneficially entitled on any account at, any sum held to its order by
and/or any liability to it of, any office of the Trustee or any Senior
Creditor in or towards satisfaction of all or any part of their respective
liabilities under this Deed which are due and unpaid and, for that purpose,
to convert one currency into another.
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16.4 Interest
In respect of any liability under this Deed of an Intra-Group Borrower or
any Subordinated Creditor which it does not discharge when due, it shall
pay to the Trustee on demand interest computed by reference to successive
periods selected by the Trustee (the first of which will start on the due
date for payment of the unpaid amount) at a rate calculated in accordance
with clause 8.3 of the Senior Facility Agreement (with all necessary
modifications), calculated day by day from the due date of the relevant
liability until full payment or discharge (both before and after judgment).
17. RIGHTS, AMENDMENTS, WAIVERS, CONSENTS AND DETERMINATIONS
17.1 Rights Additional
The rights and remedies provided in this Deed are cumulative and not
exclusive of any other rights or remedies (whether provided by law or
otherwise). Where there is any ambiguity or conflict between the rights
conferred by law and those conferred by or pursuant to this Deed, the terms
of this Deed shall prevail.
17.2 Exercise of Rights
If the Trustee fails to exercise or delays exercising any right under this
Deed, it will not operate as a waiver of that right. Any single or partial
exercise of any right will not preclude any other or further exercise of
that right or the exercise of any other right.
17.3 Amendments, Waivers and Consents
Any provision of this Deed may be amended, supplemented or novated only if
all the parties hereto agree in writing. Any waiver, consent or approval by
the Trustee under this Deed:
17.3.1 shall not be effective unless it is in writing
17.3.2 may be given subject to any conditions thought fit by the
person(s) giving it and
17.3.3 shall be effective only in the instance and for the purpose for
which it is given.
18. COMMUNICATIONS
18.1 Addresses
Each communication under this Deed shall be made by fax or otherwise in
writing. Each communication or document to be delivered to a party under
this Deed shall be sent to it at the fax number or address, and marked for
the attention, if any, from time to time designated by it to the other
parties for the purpose of this Deed. The initial fax number and address
and marking (if any) so designated by each party are set out under each
party's name in the signature pages of this Deed.
18.2 Delivery
Any communication from an Intra-Group Borrower or a Subordinated Creditor
shall be irrevocable. A communication under this Deed will only be
effective if it is received.
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19. MISCELLANEOUS
19.1 SCL Bonds
For the avoidance of doubt, if any provision of this Agreement would be
determined to be contrary to section 10.15 (Limitation on Dividends and
Other Payment Restrictions Affecting Subsidiaries) of the SCL Bonds, such
provision of this Agreement shall be considered to be ineffective to the
extent that it is contrary to such section 10.15.
19.2 Partial Invalidity
The illegality, invalidity or unenforceability of any provision of this
Deed under the law of any jurisdiction shall not affect its legality,
validity or enforceability under the law of any other jurisdiction nor the
legality, validity or enforceability of any other provision of this Deed.
19.3 Counterparts
This Deed may be executed in any number of counterparts.
19.4 Perpetuity Period
The perpetuity period for each trust created by this Deed shall be 80
years.
19.5 Designation as Finance Document
The Borrower and the Agent (acting on the instructions of the Majority
Lenders) designate this Agreement as a Finance Document by execution of
this Agreement for the purposes of the definition of Finance Document in
the Facility Agreement.
20. INDEMNITIES
20.1 Extent of Discharge
Any amount received or recovered in a currency other than the currency of
the Senior Debt (whether as a result of, or of the enforcement of, a
judgment or order of a court of any jurisdiction, in the Winding-up of an
Intra-Group Borrower or a Subordinated Creditor or otherwise) by the
Trustee in respect of the Intra-Group Liabilities or any payment required
to be paid by a Subordinated Creditor under this Deed shall only constitute
a discharge to such Subordinated Creditor to the extent of the amount in
the currency of the Senior Debt which the Trustee is able, in accordance
with its usual practice, to purchase with the amount so received or
recovered in that other currency on the date of that receipt or recovery
(or, if it is not practicable to make that purchase on that date, on the
first date on which it is practicable to do so).
20.2 Currency Indemnity
If that amount in the currency of the Senior Debt is less than the amount
due in the currency of the Senior Debt each Subordinated Creditor shall
indemnify the Trustee against any loss sustained by it as a result. In any
event, each Subordinated Creditor shall indemnify the Trustee against the
cost of making any such purchase. For the purpose of this Clause 20.2, it
will be sufficient for the Trustee to demonstrate that it would have
suffered a loss had an actual exchange or purchase been made.
20.3 Indemnities Separate
13
Each indemnity in this Deed:
20.3.1 constitutes a separate and independent obligation from the other
obligations in this Deed;
20.3.2 shall give rise to a separate and independent cause of action;
20.3.3 shall apply irrespective of any indulgence granted by the Trustee or
any Senior Creditor; and
20.3.4 shall continue in full force and effect despite any judgment, order,
claim or proof for a liquidated amount in respect of any liability
under this Deed or any other judgment or order.
21. GOVERNING LAW
This Deed shall be governed by and construed in accordance with the laws of
England.
IN WITNESS WHEREOF this Deed has been duly executed as a deed on the date stated
at the beginning.
14
SCHEDULE 1
INTRA-GROUP BORROWERS
SEA CONTAINERS BRITISH ISLES LIMITED
CHARLESTON MARINE CONTAINERS INC.
FERRY & PORT HOLDINGS LIMITED
FOLKESTONE PROPERTIES LIMITED
GNER HOLDINGS LIMITED
HOVERSPEED LIMITED
NEWHAVEN MARINA LIMITED
SEA CONTAINERS AMERICA INC.
SEA CONTAINERS FERRIES LIMITED
SEA CONTAINERS LTD.
SEA CONTAINERS PORTS & FERRIES LIMITED
SEA CONTAINERS PORTS LIMITED
SEA CONTAINERS PROPERTIES LIMITED
SEA CONTAINERS PROPERTY SERVICES LIMITED
SEA CONTAINERS RAILWAY SERVICES LIMITED
SEA CONTAINERS UK LIMITED
SILJA HOLDINGS LIMITED
SILJA OY AB
15
SCHEDULE 2
SUBORDINATED CREDITORS
SEA CONTAINERS BRITISH ISLES LIMITED
CHARLESTON MARINE CONTAINERS INC.
FERRY & PORT HOLDINGS LIMITED
FOLKESTONE PROPERTIES LIMITED
GNER HOLDINGS LIMITED
HOVERSPEED LIMITED
NEWHAVEN MARINA LIMITED
SEA CONTAINERS AMERICA INC.
SEA CONTAINERS FERRIES LIMITED
SEA CONTAINERS LTD.
SEA CONTAINERS PORTS & FERRIES LIMITED
SEA CONTAINERS PORTS LIMITED
SEA CONTAINERS PROPERTIES LIMITED
SEA CONTAINERS PROPERTY SERVICES LIMITED
SEA CONTAINERS RAILWAY SERVICES LIMITED
SEA CONTAINERS UK LIMITED
SILJA HOLDINGS LIMITED
SILJA OY AB
16
SIGNATURE PAGES
THE PARENT
EXECUTED as a DEED by power of attorney for and on behalf of
Sea Containers Limited
By: XXXXXX XXXX X'XXXXXXXX
Witness:
Occupation:
Address:
Fax:
SUBORDINATED CREDITORS
EXECUTED as a DEED by power of attorney for and on behalf of
Sea Containers British Isles Limited
By: XXX XXXXXXX
Witness:
Occupation:
Address:
Fax:
17
EXECUTED as a DEED by power of attorney for and on behalf of
Charleston Marine Containers Inc.
By: XXXXXX XXXX X'XXXXXXXX
Witness:
Occupation:
Address:
Fax:
EXECUTED as a DEED by power of attorney for and on behalf of
Ferry & Port Holdings Limited
By: XXX XXXXXXX
Witness:
Occupation:
Address:
Fax:
EXECUTED as a DEED by power of attorney for and on behalf of
Folkestone Properties Limited
By: XXX XXXXXXX
Witness:
Occupation:
Address:
Fax:
18
EXECUTED as a DEED by power of attorney for and on behalf of
GNER Holdings Limited
By: XXX XXXXXXX
Witness:
Occupation:
Address:
Fax:
EXECUTED As A DEED By Power Of Attorney For And On Behalf Of
Hoverspeed Limited
By: XXX XXXXXXX
Witness:
Occupation:
Address:
Fax:
EXECUTED as a DEED by power of attorney for and on behalf of
Newhaven Marina Limited
By: XXX XXXXXXX
Witness:
Occupation:
Address:
Fax:
19
EXECUTED as a DEED by power of attorney for and on behalf of
Sea Containers America Inc.
By: XXXXXX XXXX X'XXXXXXXX
Witness:
Occupation:
Address:
Fax:
EXECUTED as a DEED by power of attorney for and on behalf of
Sea Containers Ferries Limited
By: XXX XXXXXXX
Witness:
Occupation:
Address:
Fax:
EXECUTED as a DEED by power of attorney for and on behalf of
Sea Containers Ports & Ferries Limited
By: XXXXXX XXXX X'XXXXXXXX
Witness:
Occupation:
Address:
Fax:
20
EXECUTED as a DEED by power of attorney for and on behalf of
Sea Containers Ports Limited
By: XXX XXXXXXX
Witness:
Occupation:
Address:
Fax:
EXECUTED as a DEED by power of attorney for and on behalf of
Sea Containers Properties Limited
By: XXXXXX XXXX X'XXXXXXXX
Witness:
Occupation:
Address:
Fax:
EXECUTED as a DEED by power of attorney for and on behalf of
Sea Containers Property Services Limited
By: XXX XXXXXXX
Witness:
Occupation:
Address:
Fax:
21
EXECUTED as a DEED by power of attorney for and on behalf of
Sea Containers Railway Services Limited
By: XXX XXXXXXX
Witness:
Occupation:
Address:
Fax:
SIGNED for and on behalf of
Sea Containers UK Limited
By: XXX XXXXXXX
Witness:
Occupation:
Address:
Fax:
EXECUTED as a DEED by
Sea Containers Ltd.
By: XXXXXX XXXX X'XXXXXXXX
Witness:
Occupation:
Address:
Fax:
22
EXECUTED as a DEED by
SILJA Holdings Limited
By: XXX XXXXXXX
Witness:
Occupation:
Address:
Fax:
EXECUTED as a DEED by
SILJA OY AB
By: XXXXXX XXXX X'XXXXXXXX
Witness:
Occupation:
Address:
Fax:
23
INTRA GROUP BORROWERS
EXECUTED as a DEED by power of attorney for and on behalf of
Sea Containers British Isles Limited
By: XXX XXXXXXX
Witness:
Occupation:
Address:
Fax:
EXECUTED as a DEED by power of attorney for and on behalf of
Charleston Marine Containers Inc.
By: XXXXXX XXXX X'XXXXXXXX
Witness:
Occupation:
Address:
Fax:
EXECUTED as a DEED by power of attorney for and on behalf of
Ferry & Port Holdings Limited
By: XXX XXXXXXX
Witness:
Occupation:
Address:
Fax:
24
EXECUTED as a DEED by power of attorney for and on behalf of
Folkestone Properties Limited
By: XXX XXXXXXX
Witness:
Occupation:
Address:
Fax:
EXECUTED as a DEED by power of attorney for and on behalf of
GNER Holdings Limited
By: XXX XXXXXXX
Witness:
Occupation:
Address:
Fax:
EXECUTED As A DEED By Power Of Attorney For And On Behalf Of
Hoverspeed Limited
By: XXX XXXXXXX
Witness:
Occupation:
Address:
Fax:
25
EXECUTED as a DEED by power of attorney for and on behalf of
Newhaven Marina Limited
By: XXX XXXXXXX
Witness:
Occupation:
Address:
Fax:
EXECUTED as a DEED by power of attorney for and on behalf of
Sea Containers America Inc.
By: XXXXXX XXXX X'XXXXXXXX
Witness:
Occupation:
Address:
Fax:
EXECUTED as a DEED by power of attorney for and on behalf of
Sea Containers Ferries Limited
By: XXX XXXXXXX
Witness:
Occupation:
Address:
Fax:
26
EXECUTED as a DEED by power of attorney for and on behalf of
Sea Containers Ports & Ferries Limited
By: XXXXXX XXXX X'XXXXXXXX
Witness:
Occupation:
Address:
Fax:
EXECUTED as a DEED by power of attorney for and on behalf of
Sea Containers Ports Limited
By: XXX XXXXXXX
Witness:
Occupation:
Address:
Fax:
EXECUTED as a DEED by power of attorney for and on behalf of
Sea Containers Properties Limited
By: XXXXXX XXXX X'XXXXXXXX
Witness:
Occupation:
Address:
Fax:
27
EXECUTED as a DEED by power of attorney for and on behalf of
Sea Containers Property Services Limited
By: XXX XXXXXXX
Witness:
Occupation:
Address:
Fax:
EXECUTED as a DEED by power of attorney for and on behalf of
Sea Containers Railway Services Limited
By: XXX XXXXXXX
Witness:
Occupation:
Address:
Fax:
SIGNED for and on behalf of
Sea Containers UK Limited
By: XXX XXXXXXX
Witness:
Occupation:
Address:
Fax:
28
EXECUTED as a DEED by
Sea Containers Ltd.
By: XXXXXX XXXX X'XXXXXXXX
Witness:
Occupation:
Address:
Fax:
EXECUTED as a DEED by
SILJA Holdings Limited
By: XXX XXXXXXX
Witness:
Occupation:
Address:
Fax:
EXECUTED as a DEED by
SILJA OY AB
By: XXXXXX XXXX X'XXXXXXXX
Witness:
Occupation:
Address:
Fax:
29
THE TRUSTEE
EXECUTED as a DEED for and on behalf of
Citicorp Trustee Company Limited
By:
Witness name:
Witness signature:
Address of witness:
Occupation:
THE AGENT
EXECUTED as a DEED for and on behalf of
Citibank International plc
By: Xxxxxxxx Xxxxxxx
Witness name:
Witness signature:
30
