Exhibit 10.166
COLLATERAL ASSIGNMENT OF DEPOSIT ACCOUNT, PLEDGE
AND SECURITY AGREEMENT
This COLLATERAL ASSIGNMENT OF DEPOSIT ACCOUNT, PLEDGE AND SECURITY
AGREEMENT (this Agreement ) dated as of December 14, 1996 is between TRB
HOLDING CORPORATION, a Delaware corporation (the Grantor ), and NISSHO IWAI
EUROPE PLC, an English public liability company (the Secured Party ), SANWA
BANK TRUST COMPANY OF NEW YORK (the Depositary ), and READING & XXXXX (U.K.)
LIMITED, an English limited liability company( RB (U.K.) ).
RECITALS
WHEREAS, the Secured Party has made loans to the Grantor pursuant
to the Loan Agreement dated as of even date herewith among RB (U.K.), the
Grantor and the Secured Party (such Agreement, as it may be amended, restated,
supplemented, extended, renewed or otherwise modified from time to time, being
the Loan Agreement );
WHEREAS, it is a condition precedent to the effectiveness of the
Loan Agreement that the Grantor shall have executed and delivered this
Agreement,
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants contained herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and in order to
induce the Secured Party to make the loans under the Loan Agreement, the
Grantor, the Depositary and the Secured Party hereby agree as follows:
SECTION 1. Defined Terms and Related Matters.
(a) The words hereof , herein and hereunder and words of
similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this
Agreement.
(b) Unless otherwise defined herein or in the Loan Agreement,
the terms defined in Article 9 of the Uniform Commercial Code as enacted
in the State of New York (the UCC ) are used herein as therein defined.
(c) All capitalized terms used herein, unless specifically
otherwise defined, shall have the respective meanings ascribed to them
in the Loan Agreement.
SECTION 2. Grant of Security Interests. Each of the Grantor and
RB (U.K.) hereby pledges and assigns as collateral to the Secured Party and
grants to the Secured Party a security interest in all of its right, title and
interest in and to the following collateral, whether now owned or hereafter
arising or acquired (the Collateral ):
(i) that certain deposit account number 618727 in the name
of SBT-TRB Holding Corp. NIEP Escrow Account maintained at the
Depositary and which pursuant to Section 5(a) herein, is under the
exclusive direction, dominion and control of the Secured Party
(the Dollar Collateral Account ), and all certificates and
instruments, if any, from time to time representing or evidencing
the Dollar Collateral Account and all amounts deposited in the
Dollar Collateral Account from time to time and all other deposit
accounts from time to time maintained at the Depositary or at any
other institution, in connection with the Loan Agreement;
(ii) that certain deposit account number 618727 in the
name of SBT-TRB Holding Corp. NIEP Escrow Account maintained at
the Depositary and which pursuant to Section 5(a) herein, is under
the exclusive direction, dominion and control of the Secured Party
(the Sterling Collateral Account and together with the Dollar
Collateral Account, the Collateral Accounts ), and all
certificates and instruments, if any, from time to time
representing or evidencing the Sterling Collateral Account and all
amounts deposited in the Sterling Collateral Account from time to
time and all other deposit accounts from time to time maintained
at the Depositary or at any other institution, in connection with
the Loan Agreement; and
(iii) that certain deposit account number 619121 in the name
of SBT-TRB-NIEP-Dry Docking Expense Account maintained at the
Depositary in sterling pounds and which pursuant to Section 5(a)
herein, is under the exclusive direction, dominion and control of
the Secured Party (the Dry Docking Expense Account ), and all
certificates and instruments, if any, from time to time
representing or evidencing the Dry Docking Expense Account and all
amounts deposited in the Dry Docking Expense Account from time to
time and all other deposit accounts from time to time maintained
at the Depositary or at any other institution, in connection with
the Loan Agreement; and
(iv) all notes, certificates of deposit and other
instruments and amounts from time to time hereafter delivered to
or otherwise possessed by the Secured Party for or on behalf of
the Grantor in substitution for or in addition to any or all of
the then existing Collateral; and
(v) all interest, dividends, cash, instruments and other
property, if any, from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all
of the then existing Collateral; and
(vi) to the extent not covered by clauses (i) through (v)
above, all proceeds of any or all of the foregoing Collateral.
SECTION 3. Security for Obligations. This Agreement secures the
prompt and complete (a) payment of all obligations of the Grantor and RB
(U.K.) now or hereafter existing under the Note, the Loan Agreement and the
other Loan Documents, as each may be modified, amended, extended or renewed
from time to time; and (b) performance and observance by the Grantor and RB
(U.K.) of all covenants and conditions contained in the Loan Documents, as
each may be modified, amended, extended or renewed from time to time
(including, without limitation, the covenants and conditions contained herein)
(all such obligations, covenants and conditions described in the foregoing
clauses (a) and (b)), whether for principal, interest, fees, expenses or
otherwise, being hereinafter collectively referred to as the Obligations ).
SECTION 4. Representations and Warranties. Each of the Grantor
and RB (U.K.) hereby represents and warrants to the Secured Party (for itself
only) as follows:
(a) Such Person owns the Collateral free and clear of any Liens
thereon, other than the pledge, assignment and security interest
hereunder.
(b) Such Person has the legal right to pledge and assign as
collateral to the Secured Party the Collateral.
(c) This Agreement is effective to create a valid and perfected
Lien on the funds on deposit in the Collateral Accounts, the Dry Docking
Expense Account and the Collateral and constitutes the legal, valid and
binding obligation of such Person, enforceable in accordance with its
terms, except as the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization or moratorium or other similar
laws relating to the enforcement of creditors rights generally and by
general equitable principles.
SECTION 5. Certain Covenants of Grantor. From the date of
execution hereof until the Obligations and all other amounts due hereunder and
under the other Loan Documents are paid in full and the Commitments and all
other obligations of the Secured Party under the Loan Agreement are finally
terminated:
(a) The Grantor will maintain the Collateral Accounts and
the Dry Docking Expense Account at the Depositary and the Grantor
agrees that the Collateral Accounts and the Dry Docking Expense
Account shall at all times be maintained with, and be within the
sole dominion and control of, the Secured Party in accordance with
the terms of this Agreement.
(b) All certificates or instruments, if any, representing
or evidencing the Collateral shall be delivered to and held by or
on behalf of the Secured Party pursuant hereto and shall be in
suitable form for transfer by delivery, or shall be accompanied by
duly executed instruments of transfer or assignment in blank, all
in form and substance satisfactory to the Secured Party. Upon the
occurrence and during the continuance of a Default or Event of
Default, the Secured Party shall have the right, at any time in
its discretion and without notice to the Grantor, to transfer to
or to register in the name of the Secured Party or any of its
nominees any or all of the Collateral. In addition, the Secured
Party shall have the right at any time upon the occurrence and
during the continuance of a Default or Event of Default to
exchange certificates or instruments representing or evidencing
Collateral for certificates or instruments of smaller or larger
denominations.
(c) The Grantor agrees to take all additional measures
which are reasonably necessary in the opinion of the Secured Party
to protect the security interests granted herein. The Grantor
further agrees that from time to time, at the expense of the
Grantor, the Grantor will promptly execute and deliver all further
instruments and documents, and take all further action that may be
reasonably necessary or desirable, or that the Secured Party may
reasonably request, in order to perfect and protect any security
interests granted or purported to be granted hereby and to perfect
any security interests granted hereby or to enable the Secured
Party to exercise and enforce its rights and remedies hereunder
with respect to any of the Collateral.
(d) The Grantor will furnish to the Secured Party and the
Depositary from time to time statements and schedules further
identifying and describing the Collateral and such other reports
in connection with the Collateral as the Secured Party may
reasonably request, all in reasonable detail.
(e) The Grantor shall pay prior to delinquency all taxes,
charges, Liens and assessments against the Collateral or any part
thereof.
SECTION 6. Liens, Other Transfers and Transfer Instructions. (a)
Except as set forth in this Section 6, (i) none of the Grantor, RB (U.K.) or
the Depositary shall sell, assign, or otherwise dispose of any of the
Collateral, or withdraw or transfer any funds from the Collateral Accounts or
the Dry Docking Expense Account or create or suffer to exist any Lien upon or
with respect to any of the Collateral and (ii) no amount shall be paid or
released to or for the account of, or withdrawn by or for the account of, the
Grantor, RB (U.K.) or any other person or entity from the Collateral Accounts
or the Dry Docking Expense Account.
(b) Prior to the occurrence of any Event of Default and delivery
of a notice thereof to the Depositary, the Depositary shall transfer collected
funds in the Collateral Accounts on the fifteenth (15th) day of each calendar
month (unless such day is not a Business Day, in which case such funds shall
be transferred on the next succeeding Business Day) (the Transfer Date ) as
follows:
(i) To the Dollar Collateral Account from the Sterling
Collateral Account as set forth in the Collateral Account Instructions
(as defined below) delivered to the Depositary pursuant to Section 6(d)
for such month;
(ii) To the Secured Party at its account number 00000000 at The
Chase Manhattan Bank N.A., London Branch, Xxxxxxxx Xxxxx, Xxxxxxx
Xxxxxx, Xxxxxx XX0X 0XX, Xxxxxxx or such other account of which the
Secured Party may notify the Depositary in writing, in an amount equal
to the amount set forth in the Collateral Account Instructions delivered
to the Depositary pursuant to Section 6(d) for such month that shall be
paid to the Secured Party to be applied to the Obligations;
(iii) To RB (U.K.) at its account number 00000000, account name
Reading & Xxxxx (U.K.) Limited, SWIFT number RBOS XX 0X at the Royal
Bank of Scotland, Queens Cross Branch, 00 Xxxxx Xxxxx, Xxxxxxxx,
Xxxxxxxx XX0 0XX, or such other account of which RB (U.K.) may notify
the Depositary in writing (the RB (U.K.) Account ), in an amount equal
to the amount set forth in the Collateral Account Instructions delivered
to the Depositary pursuant to Section 6(d) for such month that shall be
paid to reimburse RB (U.K.) for Operating Expenses for such month;
(iv) To the Dry Docking Expense Account in an amount equal to the
amount set forth in the Collateral Account Instructions delivered to the
Depositary pursuant to Section 6(d) to be transferred to the Dry Docking
Expense Account for such month, to hold pending disbursement pursuant to
Section 6(b)(vii);
(v) Prior to NIC s exercise of the option under Option
Agreement, to the Grantor at its account number 00-000-000, account name
TRB Holding Corporation , ABA number 0210 0103 3 at Bankers Trust
Company, 000 Xxxxxxx Xxxxxx, Xxx Xxxxxxx Xxxxx Xxxxx, Xxx Xxxx, XX
00000; or such other account of which the Grantor may notify the
Depositary in writing, in an amount equal to the amount set forth in the
Collateral Account Instructions delivered to the Depositary pursuant to
Section 6(d) that shall be paid to the Grantor for the Working Capital
for such month, provided that such amount shall be $0 if the Minimum
Payment is paid under Section 6(b)(ii) hereof;
(vi) Subsequent to NIC s exercise of the option under Option
Agreement, to the partnership to be formed pursuant to the Option
Agreement (the Partnership ) at its account number ____________ at
________________________________ or such other account of which the
Partnership may notify the Depositary in writing, in an amount equal to
the amount set forth in the Collateral Account Instructions delivered to
the Depositary pursuant to Section 6(d) that shall be paid to the
Grantor for the Working Capital for such month; and
(vii) To RB (U.K.) at its account number 00-000-000, account name
Reading & Xxxxx (U.K.) Limited , ABA number 0210 0103 3 at Bankers
Trust Company, 000 Xxxxxxx Xxxxxx, Xxx Xxxxxxx Xxxxx Xxxxx, Xxx Xxxx, XX
00000, or such other acocunt of which RB (U.K.) may notify the
Depositary in writing; an amount equal to the Dry Docking Expenses paid
by RB (U.K.) as set forth in the Collateral Account Instructions
delivered to the Depositary that shall be paid to RB (U.K.) to reimburse
RB (U.K.) for Dry Docking Expenses.
(c) After the delivery of a notice to the Grantor and the
Depositary stating that an Event of Default shall have occurred and be
continuing, all collected funds in the Collateral Accounts and the Dry Dock
Expense Account shall be paid to the Secured Party at its account
number 00000000 at The Chase Manhattan Bank N.A., London Branch, Xxxxxxxx
Xxxxx, Xxxxxxx Xxxxxx, Xxxxxx XX0X 0XX, Xxxxxxx, or such other account of
which the Secured Party may notify the Depositary in writing, to be applied to
the Obligations in the order and amounts as the Secured Party may direct.
(d) No later than the fourth (4th) Business Day preceding each
Transfer Date of each month during which no Event of Default shall have
occurred and be continuing, the Secured Party shall deliver to the Depositary,
the Grantor and RB (U.K.) its signed certificate in the form of Exhibit A
attached hereto (the Collateral Account Instructions ), with the blanks
completed and computed in accordance with the terms of this Agreement and the
Loan Documents, stating:
(i) the amount of funds in the Sterling Collateral Account to be
converted by the Depositary to U.S. Dollars and to be transferred to the
Dollar Collateral Account;
(ii) the amount of funds to be transferred by the Depositary on
the Transfer Date from the Dollar Collateral Account to the Secured
Party to be applied to the Obligations;
(iii) the amount of funds to be transferred by the Depositary on
the Transfer Date from the Sterling Collateral Account to RB (U.K.) to
be applied to Operating Expenses;
(iv) the amount of funds to be transferred by the Depositary on
the Transfer Date from the Sterling Collateral Account to the Dry
Docking Expense Account;
(v) the amount of funds to be transferred by the Depositary on
the Transfer Date from the Dollar Collateral Account to the Partnership
as Working Capital in accordance with the terms of the Loan Agreement
and the Partnership Agreement; and
(vi) the amount of funds to be transferred by the Depositary on
the Transfer Date from the Dollar Collateral Account to the Grantor to
be applied as Working Capital in accordance with the terms of the Loan
Agreement and the Partnership Agreement.
(e) In the event that the Donan Charter is no longer in effect
and no Event of Default has occurred and is continuing, the Secured Party, the
Grantor and RB (U.K.) shall discuss and agree upon appropriate amendments to
this Section 6 and upon written notice to the Depositary delivered by the
Secured Party this Section 6 shall be amended in accordance with such
agreement.
SECTION 7. Secured Party Appointed Attorney-in-Fact. (a) Each of
the Grantor and RB (U.K.) hereby irrevocably constitutes and appoints the
Secured Party such Person s attorney-in-fact, effective upon and during the
continuance of a Default or Event of Default, with full irrevocable power and
authority in the place and stead of such Person and in the name of such
Person, the Secured Party, or otherwise, from time to time in the Secured
Party s discretion, for the sole purpose of carrying out the terms of this
Agreement and, to the extent permitted by applicable law, to take any action
and to execute any document and instrument which the Secured Party may deem
necessary or advisable to accomplish the purposes of this Agreement,
including, without limitation:
(i) to ask, demand, collect, xxx for, recover, compound, receive
and give acquittance and receipt for moneys due or to become due under
or in respect of any of the Collateral;
(ii) to receive, endorse and collect any drafts or other
instruments or documents in connection with clause (i) above; and
(iii) to file any claim or take any action or institute any
proceeding which the Secured Party may deem necessary or desirable for
the collection of any of the Collateral or otherwise to enforce the
rights of the Secured Party with respect to any of the Collateral.
SECTION 8. Secured Party May Perform. If the Grantor or RB
(U.K.) fails to perform, or cause to be performed, any agreement contained
herein the Secured Party may perform, or cause performance of, such agreement,
and the reasonable expenses of the Secured Party incurred in connection
therewith shall be payable by the Grantor under Section 11(b).
SECTION 9. The Secured Party s Duties. The powers conferred on
the Secured Party hereunder are solely to protect its interest in the
Collateral and shall not impose any duty upon the Secured Party to exercise
any such powers. Beyond the use of reasonable care in the custody of the
Collateral, the Secured Party shall not have any responsibility in respect of
any of the funds on deposit with it other than to comply with the specific
duties and responsibilities herein set forth. The Secured Party shall have no
responsibility for the genuineness or validity of any document or other item
deposited with it. Except for the safe custody of any Collateral in its
possession and the accounting for moneys actually received by it hereunder,
the Secured Party shall not have any duty as to any Collateral or as to the
taking of any necessary steps to preserve rights against prior parties or any
other rights pertaining to any Collateral.
SECTION 10. Remedies. If any Event of Default shall have
occurred and be continuing:
(a) The Secured Party may exercise in respect of the Collateral,
in addition to other rights and remedies provided for herein or
otherwise available to it, all the rights and remedies of a secured
party on default under the UCC (whether or not the UCC applies to the
affected Collateral) and also may without demand or notice of any kind
to the Grantor or RB (U.K.) (i) draw or charge against the Collateral,
including any interest which shall have accrued on the Collateral
Account or which shall be payable with respect thereto, all or any part
of the Obligations, and (ii) execute and deliver such drafts,
withdrawals and other instruments and take all such other action as the
Secured Party shall deem necessary or appropriate in order to realize
upon the Collateral, and the Depositary is hereby authorized to honor
drafts drawn or withdrawals made by the Secured Party against any of the
Collateral.
(b) All cash proceeds received by the Secured Party in respect
of any sale of, collection from, or other realization upon all or any
part of the Collateral may, in the discretion of the Secured Party, be
held by the Secured Party as collateral for, and/or then or at any time
thereafter applied in whole or in part by the Secured Party against, the
Obligations in such order as the Secured Party elects. Any surplus of
such cash or cash proceeds and interest accrued thereon, if any, held by
the Secured Party and remaining after payment in full of all the
Obligations shall be paid over to the Grantor or to whoever may be
lawfully entitled to receive such surplus; provided that the Secured
Party shall have no obligation to invest or otherwise pay interest on
any amounts held by it in connection with or pursuant to this Agreement.
(c) All rights and remedies of the Secured Party herein are in
addition to all other rights and remedies possessed by the Secured Party
in the Loan Agreement, the Note, the other Loan Documents and any other
agreement or instrument related to the Obligations.
SECTION 11. Indemnity, Expenses and Interest.
(a) To the fullest extent permitted by applicable laws, each of
the Grantor and RB (U.K.) agrees to indemnify the Secured Party and its
officers, directors, employees, agents and attorneys in accordance with
Section 9.04 of the Loan Agreement.
(b) Each of the Grantor and RB (U.K.) agrees upon demand to pay
to the Secured Party the amount of any and all reasonable expenses,
including the fees and disbursements of its counsel and of any experts
and agents, which (i) the Secured Party may incur in connection with the
modification or amendment of this Agreement or (ii) the Secured Party
may incur in connection with (v) the preparation, execution, delivery,
filing, recording or administration of this Agreement; (w) the custody,
preservation, use or operation of, or the sale of, collection from, or
other realization upon, any of the Collateral; (x) the exercise or
enforcement of any of the rights of the Secured Party hereunder; or (y)
the failure by the Grantor to perform or observe any of the provisions
hereof.
(c) Each of the Grantor and RB (U.K.) agrees to pay interest on
any expenses or other sums due hereunder that are not paid when due at a
rate per annum equal to the lesser of (i) the Maximum Rate or (ii) the
Overdue Interest Rate in effect from time to time.
(d) Grantor agrees to pay any expenses to the Depository for
maintenance of the Collateral Accounts and the Dry Docking Expense
Account.
SECTION 12. Amendments, Etc. No amendment or waiver of any
provision of this Agreement nor consent to any departure by Grantor or RB
(U.K.) herefrom, shall be effective unless the same is in accordance with
Section 9.05 of the Loan Agreement.
SECTION 13. Notices. All notices and other communications
provided for herein (including, without limitation, any modifications of, or
waivers or consents under, this Agreement) shall be given or made by telex,
telegraph, telecopy, cable or other writing and telexed, telecopied,
telegraphed, cabled, delivered or sent by certified or registered mail, return
receipt requested, to the intended recipient at the address specified below
its name on the signature pages hereof; or, as to any party, at such other
address as shall be designated by such party in a notice to the Grantor and
the Secured Party given in accordance with this Section. Except as otherwise
provided in this Agreement, all such communications shall be deemed to have
been duly given when transmitted by telex or telecopier (with receipt
confirmed by telex or telecopier), sent by the telegraph or cable office or
personally delivered or, in the case of a mailed notice, upon receipt, in each
case given or addressed as aforesaid.
SECTION 14. Continuing Security Interest. This Agreement creates
a continuing security interest in the Collateral and shall (a) remain in full
force and effect until the payment in full of Loans and all other amounts due
under the Loan Agreement and the other Loan Documents and the Commitment and
all other obligations of the Secured Party under the Loan Agreement are
finally terminated; (b) be binding upon Grantor, its successors and assigns,
provided that Grantor may not assign any of its rights or obligations under
this Agreement without the prior written consent of the Secured Party; and (c)
inure to the benefit of and be enforceable by the Secured Party and its
permitted successors, transferees and assigns under the Loan Agreement.
Without limiting the generality of the foregoing clause (c), the Secured Party
may assign or otherwise transfer any of its respective rights under this
Agreement to any other Person in accordance with the terms and provisions of
Section 9.06 of the Loan Agreement, and to the extent of such assignment or
transfer such Person shall thereupon become vested with all the benefits in
respect thereof granted herein or otherwise to the Secured Party. Upon the
termination of the obligations of the Secured Party to make loans under the
Loan Agreement and payment in full of the Obligations, Grantor and RB (U.K.)
shall be entitled to the return, upon its request and at its expense, of such
of the Collateral as shall not have been sold or otherwise applied pursuant to
the terms hereof. Upon any such termination of the security interests or
release of Collateral, the Secured Party will, at the expense of Grantor,
execute and deliver to Grantor and RB (U.K.) such documents as Grantor and RB
(U.K.) shall reasonably request to evidence the termination of the security
interests or the release of such Collateral, as the case may be. To the extent
that the Secured Party receives any payment on account of the Obligations, or
any proceeds of Collateral are applied on account of the Obligations, and any
such payment or proceeds or any part thereof are subsequently invalidated,
declared to be fraudulent or preferential, set aside, subordinated, required
to be repaid to a trustee, receiver or any other person or entity under any
debtor relief law, or recovered from the Secured Party for any other reason,
then, to the extent of such payment or proceeds received, the Obligations or
part thereof intended to be satisfied shall be revived and continue in full
force and effect, as if such payment or proceeds had not been received by the
Secured Party and applied on account of the Obligations, and the security
interests shall continue to secure such Obligations, and all rights of Grantor
and RB (U.K.) in the Collateral shall be subject to such security interests.
SECTION 15. Waiver of Marshalling. All rights of marshalling of
assets of Grantor and RB (U.K.), including any such right with respect to the
Collateral, are hereby waived by Grantor and RB (U.K.).
SECTION 16. Limitation by Law. All rights, remedies and powers
provided in this Agreement may be exercised only to the extent that the
exercise thereof does not violate any applicable provision of law, and all the
provisions of this Agreement are intended to be subject to all applicable
mandatory provisions of law which may be controlling and to be limited to the
extent necessary so that they will not render this Agreement invalid,
unenforceable, in whole or in part, or not entitled to be recorded, registered
or filed under the provisions of any applicable law.
SECTION 17. Survival of Representations and Warranties. All
representations and warranties contained in this Agreement or made in writing
by or on behalf of Grantor and RB (U.K.) in connection herewith, shall survive
the execution and delivery of this Agreement until 365 or 366 days, as the
case may be, after the date on which the commitment of the Secured Party to
make the Loan under the Loan Agreement has been terminated and the Obligations
have been paid in full. Any investigation by the Secured Party shall not
diminish in any respect whatsoever its rights to rely on such representations
and warranties.
SECTION 18. Duties of the Depositary. The acceptance by the
Depositary of its duties under this Agreement is subject to the following
terms and conditions:
(a) the Depositary s sole responsibility hereunder shall
be (i) to hold and transfer the Collateral and the proceeds
thereof as the agent of the Secured Party solely for the purpose
of perfecting the assignment, pledge and security interest of this
Agreement, (ii) to give the notices and provide the information
called for hereunder, and (iii) to disburse the Collateral,
including proceeds thereof, as provided for herein. The
Depositary shall deliver an account statement of the Collateral
Account to both the Grantor and RB (U.K.) and Secured Party within
three Business Days after the end of each month.
(b) the Depositary shall be protected in acting upon any
written notice, request, waiver, consent, receipt or other paper
or document furnished to it, not only as to its due execution and
the validity and effectiveness of its provisions, but also as to
the truth and acceptability of any information therein contained,
which it in good faith believes to be genuine.
(c) the Depositary shall not be liable for any error of
judgment, or for any act done or step taken or omitted by it in
good faith, or for any mistake of fact or law, or for anything
which it may do or refrain from doing in connection herewith,
except its own gross negligence or willful misconduct.
(d) the Depositary shall have no duties to the Secured
Party except those which are expressly set forth herein, and it
shall not be bound by any notice of a claim, or demand with
respect thereto, or any waiver, modification, amendment,
termination or rescission of this Agreement, unless in writing
received by it, and, if the Depositary s duties or liabilities as
set forth herein are altered, unless the Depositary shall have
given its prior written consent thereto.
(e) Each of the Grantor and RB (U.K.) agrees to indemnify
and hold the Depositary harmless against any and all loss,
damages, costs and expenses, including, but not limited to,
reasonable attorneys fees, that may be incurred by the Depositary
by reason of its compliance in good faith with the terms of this
Agreement, except those arising out of the gross negligence or
willful misconduct of the Depositary, it being the intention of
the Grantor and RB (U.K.) to indemnify the Depositary from the
consequences of its negligence.
(f) Depositary shall exchange to United States dollars any
funds which are to be paid out of the Collateral Accounts or the
Dry Docking Expense Account in United States dollars, on the
Transfer Date, at the four (4) Business Day forward rate in effect
on the date of receipt of the Instructions by the Depositary.
Grantor and Secured Party may mutually agree to amend this
Agreement and replace the depository if the exchange rate is
unfavorable.
SECTION 19. Severability. The invalidity of any one or more
covenants, phrases, clauses, sentences or paragraphs of this Agreement shall
not affect the remaining portions of this Agreement, or any part thereof, and
in case of any such invalidity, this Agreement shall be construed as if such
invalid covenants, phrases, clauses, sentences or paragraphs had not been
inserted.
SECTION 20. Captions. The captions in this Agreement have been
inserted for convenience only and shall be given no substantive meaning or
significance whatever in construing the terms and provisions of this
Agreement.
SECTION 21. No Waiver; Cumulative Remedies. No failure on the
part of the Secured Party to exercise, and no delay in exercising, any right
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any such right preclude any other or further exercise thereof or
the exercise of any other right. The remedies herein provided are cumulative
and not exclusive of any remedies provided by law.
SECTION 22. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement.
SECTION 23. GOVERNING LAW; SUBMISSION TO JURISDICTION. THIS
AGREEMENT, INCLUDING THE RIGHTS, OBLIGATIONS AND REMEDIES OF THE PARTIES
HEREUNDER, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF
THE STATE OF NEW YORK (WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS).
EACH OF THE GRANTOR AND RB (U.K.) HEREBY SUBMITS TO THE NONEXCLUSIVE
JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK AND OF ANY NEW YORK STATE COURT SITTING IN NEW YORK, NEW YORK FOR
PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH OF THE GRANTOR AND RB (U.K.)
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION
WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH
PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING
BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
SECTION 24. COMPLETE AGREEMENT. THIS WRITTEN AGREEMENT, THE LOAN
AGREEMENT AND THE OTHER WRITTEN AGREEMENTS ENTERED INTO AMONG THE PARTIES
REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES. THERE ARE NO ORAL AGREEMENTS AMONG THE PARTIES.
SECTION 25. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR FOR ANY COUNTERCLAIM WITH
RESPECT THERETO.
IN WITNESS WHEREOF, each of the parties hereto have caused this
Agreement to be duly executed by its respective officer thereunto duly
authorized as of the date first above written.
TRB HOLDING CORPORATION
By:
Name:
Title:
Address:
000 Xxxxxxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: X. X. Xxxxx, Executive Vice
President, Finance and Administration
Telecopy Number: (000) 000-0000
With copies to:
Nissho Iwai Corporation
0-0, Xxxxxxx 0-xxxxx
Xxxxxx-xx, Xxxxx 000, Xxxxx
Attention: Manager, Marine Project
Section 2
Marine & Offshore
Engineering Department
Telecopy Number: 011-813-3588-4547
SANWA BANK TRUST COMPANY OF NEW YORK, as
Depositary
By:
Xxxxxxxx Xxxxx
Vice President
Address:
Sanwa Bank Trust Company of New York
Financial Square
00 Xxx Xxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Department
Telecopy Number: (000) 000-0000
READING & XXXXX (U.K.) LIMITED
By:
By:
Name:
Title:
Address:
Reading & Xxxxx (U.K.) Limited
% 000 Xxxxxxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: X.X. Xxxxx, Executive Vice
President - Finance and Administration
Telecopy Number: (000) 000-0000
With copies to:
Nissho Iwai Corporation
0-0, Xxxxxxx 0-xxxxx
Xxxxxx-xx, Xxxxx 000, Xxxxx
Attention: Manager, Marine Project
Section 2
Marine & Offshore
Engineering Department
Telecopy Number: 011-813-3588-4547
NISSHO IWAI EUROPE PLC
By:
Xxxxxxxx Xxxxxx
Senior Vice President and Senior
General Manager of Houston office
Address:
London Xxxxxx
Xxxxxxx Xxxxx
000 Xxxxxx Xxxx
Xxxxxx XX0X 0XX
England
Attention:
Telecopy Number: 011-4471-588-0391
With a copy to:
Nissho Iwai Corporation
0-0, Xxxxxxx 0-xxxxx
Xxxxxx-xx, Xxxxx 000, Xxxxx
Attention: Manager, Marine Project
Section 2
Marine & Offshore
Engineering Department
Telecopy Number: 011-813-3588-4547
With a copy to:
Xxxxx & Xxxxx, L.L.P.
Xxx Xxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxx Xxxxx
Telecopy Number: (000) 000-0000
Exhibit _____
FORM
OF
COLLATERAL ACCOUNT INSTRUCTIONS
Sanwa Bank Trust Company of New York
Financial Square
00 Xxx Xxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Department
Dear Ladies and Gentlemen:
Reference is made to the Collateral Assignment of Deposit Account,
Pledge and Security Agreement (the Lockbox Agreement ) dated as of December
12, 1996, between you (the Depositary ), TRB Holding Corporation (the
Grantor), Nissho Iwai Europe PLC (the Secured Party ) and Reading & Xxxxx
(U.K.) Limited ( RB (U.K.) ). Capitalized terms used herein and not otherwise
defined herein have the meanings assigned to such terms in the Lockbox
Agreement.
The Secured Party, hereby instructs you to transfer collected
funds in the Collateral Accounts on the fifteenth (15th) day of this month
(unless such day is not a Business Day, in which case such funds shall be
transferred on the next succeeding Business Day) as follows:
(i) ____________ in the that certain deposit account number
618727 in the name of SBT-TRB Holding Corp. NIEP Escrow Account
maintained at the Depositary (the Sterling Collateral Account ) should
be converted to U.S. Dollars and be transferred to that certain deposit
account number 618727 in the name of SBT-TRB Holding Corp. NIEP Escrow
Account maintained at the Depositary (the Dollar Collateral Account );
(ii) transfer _____________ from the Dollar Collateral Account to
the Secured Party at its account number 00000000 at The Chase Manhattan
Bank N.A., London Branch, Xxxxxxxx Xxxxx, Xxxxxxx Xxxxxx, Xxxxxx XX0X
0XX, Xxxxxxx;
(iii) transfer _____________ from the Sterling Collateral Account
to RB (U.K.) at its account number 00000000, account name Reading &
Xxxxx (U.K.) Limited, SWIFT number RBOS XX 0X at the Royal Bank of
Scotland, Queens Cross Branch, 00 Xxxxx Xxxxx, Xxxxxxxx, Xxxxxxxx XX0
0XX;
(iv) transfer _____________ from the Sterling Collateral Account
to that certain deposit account number 619121 in the name of
SBT-TRB-NIEP-Dry Docking Expense Account maintained at the Depositary
in sterling pounds (the Dry Docking Expense Account );
(v) transfer ____________ from the Dollar Collateral Account to
RB FPSO L.P. at its account number _____________________ at
______________________________;
(vi) transfer ______________ from the Dollar Collateral Account
to the Grantor at its account number 00-000-000, account name TRB
Holding Corporation , ABA number 0210 0103 3 at Bankers Trust Company,
000 Xxxxxxx Xxxxxx, Xxx Xxxxxxx Xxxxx Xxxxx, Xxx Xxxx, XX 00000; and
(vii) transfer ______________ from the Dry Docking Expense Account
to RB (U.K.) at its account number 00-000-000, account name Reading &
Xxxxx (U.K.) Limited , ABA number 0210 0103 at Bankers Trust Company,
000 Xxxxxxx Xxxxxx, Xxx Xxxxxxx Xxxxx Xxxxx, Xxx Xxxx, XX 00000.
Very truly yours,
NISSHO IWAI EUROPE PLC
By:
Name:
Title:
cc:
TRB Holding Corporation
Executive Vice President
000 Xxxxxxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: ___________________
