EXHIBIT 10.2
CLEARING ACCOUNT
AGREEMENT
[SPRINGING]
This CLEARING
ACCOUNT AGREEMENT (the “Agreement”) is entered into
this 23rd day of July 2007, by and among Commerce Bank, N.A.,
having a place of business at 1701 Route 70 East, Cherry Hill, New
Jersey, 08034 (the “Clearing Bank”), SEA CONTAINERS
LTD., having its principal place of business at Canon’s
Court, 22 Victoria Street, Hamilton HM 12, Bermuda (the
“Borrower”), and WELLS FARGO BANK NORTHWEST, N.A.,
having its principal place of business at 299 South Main Street,
12th Floor, Salt Lake City, Utah, 84111 (as administrative agent
and collateral agent on behalf of the secured parties, together
with its successors and assigns, “ Agent
”).
R E C I T A L S
A.
Borrower and Agent notify Clearing Bank that by separate
agreement (that certain Secured Super-Priority
Debtor-In-Possession Credit Agreement (the “ Credit
Agreement ”), dated as of July 20, 2007, among the
Borrower, SPC Holdings LTD., as Guarantor, the lenders thereunder
(the “ Lenders ”) and the Agent) Borrower has
granted Agent a security interest in the Clearing Account (as
hereinafter defined) encumbering Borrower’s interest in
certain property (the “ Property ”) more
particularly described in the Credit Agreement.
B.
Borrower and Agent have agreed that Borrower shall establish and
maintain with financial institutions acceptable to Agent control
accounts subject to a security interest in favor of the Agent and
the other secured parties under the Credit Agreement, and Borrower
and Agent desire to retain Clearing Bank to provide the services
described herein.
NOW THEREFORE, in
consideration of the mutual promises contained herein and for other
good and valuable consideration the sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1.
Defined Terms . In addition to capitalized terms
defined elsewhere in this Agreement, the following capitalized
terms shall have the respective meanings set forth
below:
“
Business Day ” shall mean any day other than a
Saturday, Sunday or any day on which commercial banks in the
jurisdiction where the Clearing Account has been opened are
authorized or required to close.
“ Credit
Documents ” shall have the meaning ascribed to such term
in the Credit Agreement.
“
Loan ” shall mean, collectively, the Loans under and
as defined in the Credit Agreement.
“ Minimum
Balance ” shall mean $25,000.00.
“
Obligations ” shall mean any and all debt, liabilities
and obligations of Borrower to Agent and Lenders pursuant to or in
connection with the Loan, including without limitation, any and all
debt, liabilities and obligations of Borrower under the Credit
Documents (other than contingent indemnification obligations not
yet due and payable).
2.
Duties of the Clearing Bank .
(a)
Clearing Bank shall receive and process any deposits and receive
and process all wire transactions to the Clearing Account, as
defined in paragraph 2(b), presented by Borrower or any of its
agents at any of Clearing Bank’s branch offices.
(b)
In order to further secure the performance by Borrower of the
Obligations and as a material inducement for the Lenders to make
the Loan, (i) Clearing Bank has established and will maintain
collection accounts (collectively, the “ Clearing
Account ,” Account Numbers 2760212353 and 7860983282),
into which Borrower shall deposit all items specified in
Section 2(a) received by it with respect to the Property, (ii)
the Clearing Account shall be entitled “ Sea Containers
Ltd. Clearing Account ,” and (iii) Clearing Bank
acknowledges that the Clearing Account is subject to a security
interest in favor of Agent, and shall designate the Clearing
Account on its books as subject to a security interest in favor of
Agent. The Clearing Account shall be assigned the federal tax
identification number of Borrower.
(c)
If Agent so requests, to the extent that the Clearing Bank has the
operational ability to do so, Clearing Bank will provide to Agent,
whether by Internet access or otherwise, a copy of each periodic
account statement relating to the Clearing Account ordinarily
furnished by Clearing Bank to the Borrower . Clearing
Bank’s liability for failing to provide the account statement
will not exceed the Clearing Bank’s cost of providing the
statement. The Borrower hereby authorizes Clearing Bank to
provide to Agent, whether by Internet access or otherwise, any
other information concerning the Clearing Account that Clearing
Bank may agree to provide to Agent at Agent’s reasonable
request.
(d)
Items deposited with Clearing Bank, which are returned for
insufficient or uncollected funds, shall be re-deposited by
Clearing Bank a second time. Items returned unpaid the second
time for whatever reason shall be debited from the Clearing
Account. In the event that there are insufficient funds in the
Clearing Account, then Clearing Bank shall be entitled to set off
the amount of the item from another account of Borrower (if any),
and as provided in Paragraph 6 below, under advice to
Borrower.
(e)
Clearing Bank shall not be liable except for the performance of
such party’s duties and obligations as are specifically set
forth in this Agreement and the Account Documentation (as
hereinafter defined), and no implied covenants or
obligations
shall be read into this
Agreement against the Clearing Bank. At all times Clearing
Bank shall be entitled to rely upon any communication it receives
from Agent or the Borrower in connection with this Agreement or
that Clearing Bank shall believe in good faith to be a
communication received from the Agent or the Borrower in connection
with this Agreement, and Clearing Bank shall have no obligation to
investigate or verify the authenticity or correctness of any such
communication.
(f)
Clearing Bank shall not be liable for failing to follow an
instruction that Clearing Bank reasonably determines would result
in Clearing Bank’s failing to comply with a statute, rule or
regulation, or an order or legal process, binding upon Clearing
Bank.
(g)
Clearing Bank has not entered into any currently effective
agreement with any person under which Clearing Bank may be
obligated to comply with instructions regarding the Clearing
Account or disposition of funds therein originated by a person
other than the Borrower or Agent . Clearing Bank will
not enter into any agreement with any person under which Clearing
Bank may be obligated to comply with instructions regarding the
Clearing Account or disposition of funds therein originated by a
person other than the Borrower or Agent.
3.
Transfer of Funds in Clearing Account .
(a)
The Clearing Bank will comply with instructions originated by Agent
directing disposition of funds in the Clearing Account, in each
case (i) without the Borrower’s further consent, and (ii)
even if following the instruction results in the dishonoring by
Clearing Bank of items presented for payment from the Clearing
Account or Clearing Bank otherwise not complying with the
Borrower’s instruction. The Borrower, Agent and
Clearing Bank agree that Clearing Bank, after its receipt of any
Exclusive Control Notice, as defined below, and until such time as
it receives written notice from Agent rescinding such Exclusive
Control Notice, shall take all instruction with respect to the
Clearing Account solely from Agent and will cease complying with
the Borrower’s instructions with regard to the Clearing
Account.
(b)
Agent hereby instructs Clearing Bank to comply with instructions
directing the disposition of funds in the Clearing Account
originated by the Borrower or its authorized representatives until
such time as Agent delivers a written notice in substantially the
form of Exhibit A (an “ Exclusive Control Notice
”) to Clearing Bank; provided, however, that the Clearing
Account shall be subject to the security interest in favor of Agent
at all times regardless of the Borrower’s ability to direct
disposition of funds in the Clearing Account
(c)
Instructions given by Agent hereunder shall be substantially in the
form of Exhibit B and executed by an Authorized Officer (as
hereinafter defined), directing the disposition of the funds in the
Clearing Account. Prior to issuing any instructions, Agent shall
provide Clearing Bank with an incumbency certificate in the form of
Exhibit C attached hereto, which certificate shall contain the name
and specimen signature of each
individual with the
authority to issue instructions on behalf of Agent (each such
individual, an “ Authorized Officer
”).
4.
Termination .
(a)
Clearing Bank may resign from its obligations under this Agreement
at any time after thirty (30) days’ prior written notice to
the other parties hereto, but the Clearing Bank may resign from its
obligations under this Agreement at any time after five (5)
Business Days’ prior written notice to the other parties
hereto in the event of fraud or material breach of this Agreement
on the part of any of the other parties hereto. Borrower shall
designate a successor to Clearing Bank promptly after receipt of
notice of resignation by Clearing Bank, which successor shall be
subject to the approval of Agent, and use commercially reasonable
efforts to cause such designated successor promptly to assume the
obligations of Clearing Bank hereunder.
(b)
Agent may terminate this Agreement for any reason or no reason
whatsoever, at any time upon thirty (30) days’ prior written
notice to the other parties hereto.
(c)
Borrower may not unilaterally terminate this Agreement or close the
Clearing Account. Except after the effective date of the
Clearing Bank’s resignation or early termination as set forth
in Paragraphs 4(a) and 4(b) herein, Clearing Bank shall
not cause or permit the Clearing Account to be closed unless it has
received the prior written consent of the other parties
hereto.
5.
Standard of Care; Indemnification .
(a)
Clearing Bank shall be responsible for the performance of only such
duties as are set forth herein or contained in instructions given
to the Clearing Bank. Clearing Bank’s liability shall be
limited to
