SEA CONTAINERS LTD.
(the "Company")
LIMITED POWER OF ATTORNEY
Recitals
(A) WHEREAS Company is party to a Secured Facilities Agreement for
US$158,000,000 (the "Facility Agreement") dated 10th June 2003, made
between (among others) Sea Containers British Isles Limited as borrower
("the Borrower") and Citibank International PLC as Agent (the "Agent")
and further proposed that the Company will be a guarantor of the
obligations of the Borrower under the Facility Agreement;
(B) WHEREAS the Facility Agreement is to be amended by an amendment agreement
dated on or about 19 December 2003.
(C) WHEREAS the Company is the absolute and sole legal and beneficial owner
of the Secured Shares (as defined in the Facility Agreement);
(D) WHEREAS it is contemplated that during the Security Period the Secured
Shares will be charged by the Company as security for obligations of the
Borrower and the Company (among others) to the Agent and the Lenders and
that the Secured Shares will be held by Citicorp Trustee Company Limited
pursuant to (a) a Custodian Accounts Charge to be made among the Company,
Citibank N.A and Citicorp Trustee Company Limited (the "Custodian Account
Charge") and a security agreement to be made among the Company, Citibank
N.A and Citicorp Trustee Company Limited (the "OEH Security Agreement") ;
(E) WHEREAS as an inducement to the Agent and each of the Lenders to enter
into the Facility Agreement it is a condition precedent that the Company
shall grant this Power of Attorney in favour of the Agent enabling and
permitting the sale of the Secured Shares by the Agent in order to
enforce the rights of the Agent granted pursuant to the terms of the
Facility Agreement; and
(F) WHEREAS the Board of Directors pursuant to duly adopted resolutions has
agreed to grant this limited Power of Attorney to the Agent for the
purposes of protecting and securing the rights and interests of the Agent
and the Lenders.
1 Definitions and Interpretation
In this Power of Attorney (which includes the Recitals set out above) words and
expressions defined in the Custodian Account Charge (as read with the Facility
Agreement) or, as the case may be, the OEH Security Agreement shall have the
same meaning herein as therein, and the same principles of interpretation set
forth in the Custodian Account Charge or, as the case may be, the OEH Security
Agreement shall be applicable, mutatis mutandis, as if the same were set out in
full herein, unless a contrary intention appears. In addition, the following
expressions shall have the following meanings:
"Advisors" means any underwriters, legal counsel for the underwriters,
independent public accountants, rating agencies, financial advisors,
consultants, legal counsel or other advisors;
"applicable securities law" means the Securities Act and any Rules and
Regulations adopted thereunder, and any other law applicable to the offering and
sale of securities by or in the Company.
"Attorney" means the Agent and the other Attorneys appointed pursuant to Section
2, and includes any one or more of them;
"Authorised Officer" means any person appointed by the Agent whose title of
office includes the words "Vice President" or "Manager";
"Regulation" means a regulation adopted by the SEC under the Securities Act;
"Rule" means a rule adopted by the SEC under the Securities Act;
"SEC" means the United States Securities and Exchange Commission;
"Securities Act" means United States Securities Act of 1933 as amended from time
to time; and
"security" shall have the meaning ascribed to such expression in the Xxxxxxxxxx
Xxxxxxxx Xxx 0000, as amended
2. Operative Provisions
The Company does hereby designate, constitute and irrevocably appoint the Agent
and each of its Authorised Officers severally to be its Attorneys (each an
"Attorney") for the duration of the Security Period, and irrevocably delegates
to each of its Attorneys for the sole purpose of, and only to the extent
necessary to enforce the rights of the Agent in relation to the Secured Shares
under the terms of the Facility Agreement, full authority to act in the name of
the Company and to exercise or refrain from exercising on behalf of the Company
all discretions, powers and authorities of the Board of Directors in connection
with the sale or disposal of Secured Shares including discretion, power and
authority to:
(1) retain, give instructions to and make arrangements with and through such
Advisors and such other agents as may in the sole opinion of the Agent be
necessary or desirable for the offering and public sale or sales of the
whole or any part of the Secured Shares in the United States by
registering the Secured Shares for sale with the SEC through a shelf or
other registration of the Secured Shares under the Securities Act and
applicable securities law;
(2) retain, give instructions to and make arrangements with and through such
Advisors and such other agents as may in the sole opinion of the Agent be
necessary or desirable for the preparation of a prospectus to supplement
the (then) current Registration Statement and Prospectus filed by OEH
with the SEC, and to give and perform all necessary undertakings to stock
exchanges, the SEC and other regulatory authorities in connection with
the preparation and filing of any post-effective amendments to the
Registration Statement;
(3) retain, give instructions to and make arrangements with and through such
Advisors, and such other agents as may in the sole opinion of the Agent
be necessary or desirable for the sale of the Secured Shares in trade
sales to a strategic or financial buyer including, without limitation,
instructions and arrangements for the preparation of any purchase
agreements between the Company and any such buyers;
(4) retain, give instructions to and make arrangements with and through such
Advisors and such other agents as may in the sole opinion of the Agent be
necessary or desirable for the sale of the Secured Shares in unsolicited
brokers' transactions or direct sales of the Secured Shares in the United
States with market-makers pursuant to Rule 144;
(5) retain, give instructions to and make arrangements with and through such
Advisors and such other agents as may in the sole opinion of the Agent be
necessary or desirable for the sale of the Secured Shares in unregistered
block trades or private placements including, without limitation,
instructions and arrangements for the preparation of a private placement
memorandum and any purchase agreements between the Company and securities
professionals or investors;
(6) retain, give instructions to and make arrangements with and through such
Advisors and such other agents as may in the sole opinion of the Agent be
necessary or desirable for the offering and sale of the Secured Shares
outside the United States in accordance with applicable securities law;
(7) exercise all rights, powers and privileges appurtenant to the ownership
of the Secured Shares (including without limitation) the right to vote or
consent, and to sell, lend, dispose of, transfer or otherwise alienate
all or any part of the right title and interest of the Company in and to
any of the Secured Shares to any other person;
(8) authorize other agents to take any of the foregoing actions; and
(9) retain, give instructions and make arrangements with such Advisors and
such other agents as may in the sole opinion of the Agent be necessary or
desirable for the preparation of any documents relating to the sale of
the Secured Shares;
(10) execute all such documents and to take all such other actions as it may
consider necessary or advisable in connection with any of the foregoing.
The Attorneys are hereby authorized and empowered to perform all other acts and
deeds, which they in their sole discretion, acting singly or jointly, deem
necessary or appropriate to carry out to the fullest extent the terms and the
intent of the foregoing.
Costs, Charges and Expenses
The Company hereby agrees to pay or reimburse the Agent on demand for and on
behalf of itself and each of the other Attorneys and any agents appointed
hereunder for all reasonable costs, charges and expenses of any description
incurred by the Agent or any Attorney pursuant to this Power of Attorney on a
full indemnity basis, excluding willful misconduct or fraud on the part of the
Agent or an Attorney.
Indemnities
The Company hereby indemnifies and agrees to keep at all times indemnified the
Agent and any other Attorney appointed under this deed against any loss or
liability arising from, and any costs, charges, expenses and liabilities
incurred in relation to the exercise of any powers, authorities or discretions
conferred by this Power of Attorney on the Agent or any Attorney, in the absence
of willful misconduct or fraud.
Exculpation and Release
The Company hereby agrees that, in the absence of willful misconduct or fraud,
no liability (howsoever arising) shall attach to the Agent or any Attorney in
connection with the exercise of any powers, authorities or discretions conferred
by this Power of Attorney on the Agent or any Attorney, in the absence of
willful misconduct or fraud, and the Company hereby irrevocably and
unconditionally releases each of its Attorneys from any liability to the Company
in the absence of willful misconduct or fraud.
Ratification
The Company hereby agrees to ratify and confirm whatsoever the Agent and any
Attorney shall do or purport to do by reason of this Power of Attorney.
No Warranty by Attorneys
The Company acknowledges that the execution by an Attorney of any document in
the exercise of such Attorney's powers hereunder shall not connote any warranty
on the part of the Attorney (express or implied) as to the accuracy or
completeness of any factual matters or representations or warranties contained
in any documents or any assumption of personal liability by the Attorney in
executing such documents.
Duration
This Power of Attorney shall be irrevocable and valid for the duration of the
Security Period.
Governing Law and Jurisdiction
This Power of Attorney shall be governed by and construed in accordance with the
laws of Bermuda, and the Company hereby irrevocably agrees that nothing in this
clause shall affect the right of the Agent on behalf of itself or any Attorney
to take proceedings with respect to any matter arising under this Power of
Attorney against the Company in any jurisdiction, nor shall the taking of
proceedings with respect to this Power of Attorney in any jurisdiction preclude
the Agent from taking proceedings with respect to this Power of Attorney in any
other jurisdiction, whether concurrently or not.
IN WITNESS WHEREOF, the Company has executed and unconditionally delivered this
Power of Attorney as a deed this day of December, 2003.
The Common Seal of Sea Containers Ltd.
was hereunto affixed in the presence of:
Name:
Title:
