EXHIBIT 4.6
EXECUTION COPY
This RESERVE ACCOUNT AGREEMENT (the "Agreement"), dated as
of November 1, 1999, among WILMINGTON TRUST COMPANY, as reserve
account agent (in such capacity, the "Reserve Account Agent"),
WILMINGTON TRUST COMPANY, as trustee (in such capacity, the
"Trustee") under the Indenture (as defined herein), AMETHYST
FINANCIAL COMPANY LIMITED, a British Virgin Islands limited
liability company (the "Issuer").
RECITALS
A. Pursuant to the Indenture, dated as of November 1, 1999 (as
amended, amended and restated, supplemented or otherwise modified from time to
time, the "Indenture"), among the Issuer, the Trustee, Pride International, Inc.
and Maritima Petroleo e Engenharia Ltda., the Issuer is issuing $53,000,000
aggregate principal amount at Stated Maturity of its 11 3/4% Senior Secured
Notes due 2002 (the "Notes").
B. As security for its obligations, among other things, under the
Notes and the Indenture, the Issuer is required to enter into a Senior Secured
Note Security and Pledge Agreement of even date herewith (the "Security and
Pledge Agreement") with Wilmington Trust Company, as Collateral Agent (the
"Collateral Agent"), and the Trustee, in which the Issuer is granting Liens on
an undivided 53% interest in the Issuer Loans and the Issuer's right, title and
interest in and to the Mitsubishi Documents and the security for the Issuer
Loans provided for in the Mitsubishi Loan Collateral Documents (the "Secured
Note Collateral").
C. Under the terms of the Indenture and the Security and Pledge
Agreement, the Issuer is required to pay (or cause to be paid) all amounts of
principal, interest and other obligations owed to the Issuer in respect of the
Issuer Loans and the Mitsubishi Documents, whether proceeds of the Secured Note
Collateral or otherwise, consisting of cash or cash equivalents to the Trustee
or the Reserve Account Agent for deposit in the Reserve Account (as defined
below).
D. The parties have entered into this Agreement in order to set
forth the conditions upon which, and the manner in which, funds will be
disbursed from the Reserve Account and released from the security interest and
Liens created hereby.
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NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. DEFINED TERMS. Terms used herein and not defined herein shall
have the meanings as defined in the Indenture. In addition to any other defined
terms used herein, the following terms shall constitute defined terms for
purposes of this Agreement and shall have the meanings set forth below:
"AVAILABLE FUNDS" means (A) the sum of (i) all amounts deposited in
the Reserve Account from time to time and (ii) interest earned or dividends paid
on the funds in the Reserve Account (including holdings of Temporary Cash
Investments), less (B) the sum of (i) aggregate disbursements previously made or
then required to be made pursuant to Section 3(a)(i) or Section 3(a)(ii) of this
Agreement and (ii) the aggregate disbursements previously made pursuant to
Section 3(a)(iii), 3(a)(iv) or 6(b)(iii) of this Agreement.
"COLLATERAL" shall have the meaning given in Section 6(a) hereof.
"DISBURSEMENT REQUEST" means a notice sent by the Issuer requesting
a disbursement of funds from the Reserve Account, in substantially the form of
Exhibit A hereto or Exhibit B hereto, as applicable. Each Disbursement Request
shall be signed by the Chairman of the Board, a Vice Chairman of the Board, the
Chief Executive Officer, the Chief Operating Officer, the Chief Financial
Officer or any Vice President of the Issuer.
"ISSUE DATE" means November 1, 1999.
"RESERVE ACCOUNT" shall have the meaning given in Section 2(b).
"RESERVE ACCOUNT AGENT" shall have the meaning set forth in the
preamble to this Agreement.
"TRUSTEE" shall include any successor Trustee appointed pursuant to
the Indenture.
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2. RESERVE ACCOUNT; RESERVE ACCOUNT AGENT. (a) APPOINTMENT OF
RESERVE ACCOUNT AGENT. The Issuer and the Trustee hereby appoint the Reserve
Account Agent, and the Reserve Account Agent hereby accepts appointment, as
reserve account agent, under the terms and conditions of this Agreement.
(b) ESTABLISHMENT OF THE RESERVE ACCOUNT. Concurrent with the
execution and delivery hereof, the Reserve Account Agent shall establish and
maintain in the name of the Issuer at Bankers Trust Company, a special,
segregated and irrevocable reserve account designated "Senior Secured Note
Reserve Account pledged by Amethyst Financial Company Limited to Wilmington
Trust Company, as Trustee" (the "Reserve Account"). All funds accepted by the
Reserve Account Agent pursuant to this Agreement shall be held in the Reserve
Account until disbursed in accordance with the terms hereof. The Reserve
Account, the funds held therein and any Temporary Cash Investments held by the
Reserve Account Agent in which such funds are invested shall be beneficially
owned by the Issuer and pledged to and under the sole dominion and control of
the Trustee, acting for its benefit and the equal and ratable benefit of the
Holders of the Notes.
(c) The Issuer shall provide notice to the Reserve Account Agent and
the Trustee of the source of any moneys deposited to the Reserve Account by
reference to the applicable provisions of the Indenture and the Mitsubishi
Documents and by reference to whether any such moneys represent payments of
principal of or interest on the Issuer Loans or other amounts and shall keep an
ongoing record of the amounts so deposited and disbursed in accordance with this
Agreement. It shall be the Issuer's responsibility to satisfy the Trustee as to
the accounting for the Reserve Account, with a view to ensuring that the amounts
required to be calculated for any disbursement are ascertainable.
(d) RESERVE ACCOUNT AGENT COMPENSATION. The Issuer shall pay to the
Reserve Account Agent such compensation for services to be performed by it under
this Agreement as the Issuer and the Reserve Agent may agree in writing from
time to time. The Reserve Agent shall be paid any compensation owed to it
directly by the Issuer and shall not disburse from the Reserve Account any such
amounts.
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The Issuer shall reimburse the Reserve Account Agent upon request
for all reasonable expenses, disbursements and advances incurred or made by the
Reserve Account Agent in implementing any of the provisions of this Agreement,
including reasonable compensation and expenses and disbursements of its counsel.
The Reserve Agent shall be paid any such expenses owed to it directly by the
Issuer and shall not disburse from the Reserve Account any such amounts. The
provisions of this Section 2(d) shall survive termination of this Agreement.
(e) INVESTMENT OF FUNDS IN THE RESERVE ACCOUNT. Pending release
thereof in accordance with this Agreement and the Indenture, funds deposited in
the Reserve Account shall be invested and reinvested only upon the following
terms and conditions:
(i) ACCEPTABLE INVESTMENTS. All funds deposited or held in the
Reserve Account at any time shall be invested, at the direction of the
Issuer except during the continuance of a Default or an Event of Default,
and then only at the direction of the Trustee, by the Reserve Account
Agent in Temporary Cash Investments in accordance with the Issuer's or the
Trustee's written instructions, as applicable, from time to time to the
Reserve Account Agent; PROVIDED, HOWEVER, that any such written
instruction shall specify the particular Investment to be made, shall
contain the certification referred to in Section 2(e)(ii), if required,
and shall be executed by an officer of the Issuer. All Temporary Cash
Investments shall be assigned to and held in the possession of, or, in the
case of Temporary Cash Investments maintained in book-entry form with the
Federal Reserve Bank, transferred to a book entry account in the name of,
the Reserve Account Agent, as pledgee, with such guarantees as are
customary, except that Temporary Cash Investments maintained in book-entry
form with the Federal Reserve Bank shall be transferred to a book entry
account in the name of the Reserve Account Agent at the Federal Reserve
Bank that includes only Temporary Cash Investments held by the Reserve
Account Agent for its customers and segregated by separate recordation in
the books and records of the Reserve Account Agent.
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(ii) SECURITY INTEREST IN AND LIEN ON INVESTMENTS. No investment of
funds in the Reserve Account shall be made unless the Issuer has certified
to the Reserve Account Agent and the Trustee that, upon such investment,
the Trustee will have a first priority perfected Lien and security
interest for the benefit of the Trustee and the equal and ratable benefit
of the Holders of the Secured Notes in the applicable Investment. A
certificate as to a class of investments need not be issued with respect
to individual investments in securities in that class if the certificate
applicable to the class remains accurate with respect to such individual
investments, which continued accuracy the Reserve Account Agent may
conclusively assume. Promptly after the Issue Date, and within three
months after the anniversary of the Issue Date, until the payment in full
of the Notes in accordance with the terms thereof and of the Indenture,
and all other Obligations then due and owing under the Notes, the
Indenture, this Agreement and the other Security Agreements, the Issuer
shall provide to the Trustee and the Reserve Account Agent, an Opinion of
Counsel, dated each such date as applicable, which opinion shall meet the
requirements of Section 314(b) of the Trust Indenture Act of 1939, as
amended (the "TIA").
(iii) INTEREST AND DIVIDENDS. All interest earned and dividends paid
on funds invested in Temporary Cash Investments shall be deposited in the
Reserve Account as additional Collateral beneficially owned by the Issuer
and pledged to the Trustee, acting for its benefit and the equal and
ratable benefit of the Holders of the Notes, and shall be reinvested in
accordance with the terms hereof.
(iv) LIMITATION ON RESERVE ACCOUNT AGENT'S RESPONSIBILITIES. The
Reserve Account Agent's sole responsibilities under this Section 2 shall
be (A) to retain, or cause its agent in the State of New York to retain,
possession of certificated Temporary Cash Investments (except, however,
that the Reserve Account Agent may surrender possession of any such
Temporary Cash Investments to the issuer thereof for the purpose of
effecting assignment, crediting interest, or reinvesting such security or
reducing such security to cash) and to be
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the registered or designated owner of Temporary Cash Investments which are
not certificated, (B) to follow the Issuer's or the Trustee's written
instructions, as applicable, given in accordance with Section 2(e)(i), (C)
to invest and reinvest funds pursuant to this Section 2(e) and (D) to use
reasonable efforts to reduce to cash such Temporary Cash Investments as
may be required to fund any disbursement or payment in accordance with
Section 3. In connection with clause (i) above, the Reserve Account Agent
will maintain, or cause its agent in the State of New York to maintain,
continuous possession in the State of New York of certificated Temporary
Cash Investments and cash included in the Collateral and will cause
uncertificated Temporary Cash Investments to be registered in the
book-entry system of, and transferred to an account of the Reserve Account
Agent or a subagent of the Reserve Account Agent at, the Federal Reserve
Bank of New York. Except as set forth below, the Reserve Account Agent
shall not be required to reduce to cash any Temporary Cash Investments to
fund any disbursement or payment in accordance with Section 3 in the
absence of written instructions signed by an officer of the Issuer
specifying the particular investment to liquidate, unless a Default or
Event of Default has occurred and is continuing, in which case such
written instructions shall be signed by a Responsible Officer of the
Trustee. If no such written instructions are received, the Reserve Account
Agent shall liquidate those Temporary Cash Investments having the lowest
interest rate per annum, regardless of maturity, or if none such exist,
those having the nearest maturity. The Reserve Account Agent shall have no
duty to determine whether or not to file or record any document or
instrument in connection with this Agreement, but will follow the
instructions of the Trustee.
(f) SUBSTITUTION OF RESERVE ACCOUNT AGENT. The Reserve Account Agent
may resign by giving not less than 30 days' prior written notice to the Issuer
and the Trustee. Such resignation shall take effect upon the later to occur of
(i) delivery of all funds and Temporary Cash Investments maintained by the
Reserve Account Agent hereunder and copies of all books, records and other
documents in the Reserve Account Agent's possession relating to such funds or
Temporary Cash
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Investments or this Agreement to a successor Reserve Account Agent mutually
approved by the Issuer and the Trustee (which approvals shall not be
unreasonably withheld or delayed) and (ii) the Issuer, the Trustee and such
successor Reserve Account Agent entering into this Agreement or any written
successor agreement no less favorable to the interests of the Holders of the
Notes and the Trustee than this Agreement; and the Reserve Account Agent shall
thereupon be discharged of all obligations under this Agreement other than for
existing claims for wilful misconduct, gross negligence or breaches of this
Agreement and shall have no further duties, obligations or responsibilities in
connection herewith, except as set forth in Section 4. If a successor Reserve
Account Agent has not been appointed or has not accepted such appointment within
30 days after notice of resignation is given to the Issuer, the Reserve Account
Agent may apply to a court of competent jurisdiction for the appointment of a
successor Reserve Account Agent.
3. DISBURSEMENTS. (a) DISBURSEMENT REQUEST; DISBURSEMENTS. (i) Not
later than three Business Days after any deposit to the Reserve Account in
respect of a payment of principal on any Issuer Loan, the Issuer shall submit to
the Reserve Account Agent, with a copy to the Trustee, a completed Disbursement
Request substantially in the form of Exhibit A hereto requesting payment to the
Issuer of funds from the Reserve Account in an amount equal to 47% of the amount
of such principal payment.
(ii) Not later than three Business Days after the amount on deposit
in the Reserve Account representing interest payments on the Issuer Loans first
exceeds the amount payable on the Notes in respect of interest (including
Additional Amounts, if any, and Special Interest, if any) on the Notes on the
next succeeding Interest Payment Date, the Issuer shall submit to the Reserve
Account Agent, with a copy to the Trustee, a completed Disbursement Request
substantially in the form of Exhibit A hereto requesting payment to the Issuer
of funds from the Reserve Account in an amount equal to such excess.
(iii) At least two Business Days prior to any date on which a
disbursement from the Reserve Account is required for a payment on the Notes,
including an Interest Payment Date, a
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Redemption Date or a Change of Control Payment Date, the Issuer shall submit to
the Reserve Account Agent a completed Disbursement Request substantially in the
form of Exhibit B hereto requesting payment to the Trustee of Available Funds on
deposit in the Reserve Account in an amount equal to the aggregate amount of
principal, premium, if any, and interest (including Special Interest, if any,
and Additional Amounts, if any), owed on the Notes under the Indenture on such
Interest Payment Date, Redemption Date or Change of Control Payment Date, as the
case may be, unless the Issuer has disbursed and the Trustee has received funds
from the Issuer in such amount on or before such Interest Payment Date,
Redemption Date or Change of Control Payment Date.
(iv) If an Event of Default under the Indenture has occurred and is
continuing, the Trustee shall be entitled unilaterally to initiate withdrawals
by executing a Disbursement Request which will be substantially similar to the
form of Exhibit A or Exhibit B, as applicable, but which need only to be
executed by the Trustee.
(b) CONDITIONS PRECEDENT TO DISBURSEMENT. Subject to Section 4 and
any mandatory provisions of applicable law, the Reserve Account Agent shall make
the payments to be made pursuant to a completed Disbursement Request if (i) the
Issuer shall have submitted, in accordance with the provisions of Section 3(a)
herein such Disbursement Request to the Reserve Account Agent substantially in
the form of Exhibit A or Exhibit B, as applicable, with blanks appropriately
filled in and (ii) the Reserve Account Agent shall not have received any notice
from the Trustee that as a result of an Event of Default the Indebtedness
represented by the Notes has been accelerated and has become due and payable (in
which event the Reserve Account Agent shall apply all Available Funds as
required by Section 6(b)(iii)).
(c) CERTIFICATIONS FOR DISTRIBUTIONS. Provided that no Event of
Default has occurred and is continuing, the Issuer shall initiate all requests
for withdrawal of funds from the Reserve Account by executing a Disbursement
Request and submitting such request to the Trustee. The Trustee shall not,
except following an Event of Default, be entitled unilaterally to initiate
withdrawals.
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(d) DEPOSITS IRREVOCABLE. Any deposits made into the Reserve Account
hereunder shall be irrevocable and the amount of such deposits and any
instrument or security held in the Reserve Account hereunder and all interest
thereon shall be held in trust by the Reserve Account Agent and applied solely
as provided herein.
4. LIMITATION OF THE RESERVE ACCOUNT AGENT'S LIABILITY:
RESPONSIBILITIES OF THE RESERVE ACCOUNT AGENT. The Reserve Account Agent's
responsibility and liability under this Agreement shall be limited as follows:
(i) the Reserve Account Agent does not represent, warrant or guaranty to the
Holders of the Notes from time to time the performance of the Issuer; (ii) the
Reserve Account Agent shall have no responsibility to the Issuer or the Holders
of the Notes or the Trustee from time to time as a consequence of performance or
nonperformance by the Reserve Account Agent hereunder, except for any gross
negligence or wilful misconduct of the Reserve Account Agent or its breach of
this Agreement; (iii) the Issuer shall remain solely responsible for all aspects
of the Issuer's business and conduct; and (iv) the Reserve Account Agent is not
obligated to supervise, inspect or inform the Issuer or any third party of any
matter referred to above.
No implied covenants or obligations shall be inferred from this
Agreement against the Reserve Account Agent, nor shall the Reserve Account Agent
be bound by the provisions of any agreement beyond the specific terms hereof.
Specifically and without limiting the foregoing, the Reserve Account Agent shall
in no event have any liability in connection with its investment, reinvestment
or liquidation, in good faith and in accordance with the terms hereof, of any
funds or Temporary Cash Investments held by it hereunder, including without
limitation any liability for any delay not resulting from gross negligence or
willful misconduct in such investment, reinvestment or liquidation, or for any
loss of principal or income incident to any such delay.
The Reserve Account Agent shall be entitled to rely upon any
judicial order or judgment, upon any written opinion of counsel or upon any
certification, instruction, notice, or other writing delivered to it by the
Issuer or the Trustee in compliance with the provisions of this Agreement
without being
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required to determine the authenticity or the correctness of any fact stated
therein or the propriety or validity of service thereof. The Reserve Account
Agent may act in reliance upon any instrument comporting with the provisions of
this Agreement or signature believed by it to be genuine and may assume that any
Person purporting to give notice or receipt or advice or make any statement or
execute any document in connection with the provisions hereof has been duly
authorized to do so.
The Reserve Account Agent may act pursuant to the oral or written
advice of counsel chosen by it with respect to any matter relating to this
Agreement and shall not be liable for any action taken or omitted in accordance
with such advice.
The Reserve Account Agent shall not be called upon to advise any
party as to selling or retaining, or taking or refraining from taking any action
with respect to, any securities or other property deposited hereunder.
In the event of any ambiguity in the provisions of this Agreement
with respect to any funds or property deposited hereunder, the Reserve Account
Agent shall be entitled to refuse to comply with any and all claims, demands or
instructions with respect to such funds or property, and the Reserve Account
Agent shall not be or become liable for its failure or refusal to comply with
conflicting claims, demands or instructions. The Reserve Account Agent shall be
entitled to refuse to act until either any conflicting or adverse claims or
demands shall have been finally determined by a court of competent jurisdiction
or settled by agreement between the conflicting claimants as evidenced in a
writing, satisfactory to the Reserve Account Agent, or the Reserve Account Agent
shall have received security or an indemnity satisfactory to the Reserve Account
Agent sufficient to save the Reserve Account Agent harmless from and against any
and all loss, liability or expense which the Reserve Account Agent may incur by
reason of its acting. In connection with the matters described in this
paragraph, the Reserve Account Agent may in addition elect in its sole option to
commence an interpleader action or seek other judicial relief or orders as the
Reserve Account Agent may deem necessary.
No provision of this Agreement shall require the
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Reserve Account Agent to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder.
5. INDEMNITY. The Issuer shall indemnify, hold harmless and defend
the Reserve Account Agent and its directors, officers, agents, employees and
controlling persons, from and against any and all claims, actions, obligations,
liabilities and expenses, including defense costs, investigative fees and costs,
legal fees, and claims for damages, arising from the Reserve Account Agent's
performance under this Agreement, except to the extent that such liability,
expense or claim is directly attributable to the gross negligence or willful
misconduct of any of the foregoing Persons or such Persons' breach of this
Agreement. The provisions of this Section shall survive any termination,
satisfaction or discharge of this Agreement as well as the resignation or
removal of the Reserve Account Agent. The provisions of this paragraph 5 shall
survive the termination of this Agreement.
6. GRANT OF LIENS AND SECURITY INTEREST: INSTRUCTIONS TO RESERVE
ACCOUNT AGENT. (a) The Issuer hereby irrevocably grants a first priority,
subject to the Security and Pledge Agreement, security interest in and Lien on,
and pledges, assigns and sets over to the Trustee, for its benefit and the equal
and ratable benefit of the Holders of the Notes, all of the Issuer's right,
title and interest in the Reserve Account, and all property now or hereafter
placed or deposited in, or delivered to the Reserve Account Agent for placement
or deposit in, the Reserve Account, including, without limitation, all funds
held therein, all Temporary Cash Investments held by (or otherwise maintained in
the name of) the Reserve Account Agent pursuant to Section 2, and all proceeds
thereof as well as all rights of the Issuer under this Agreement (collectively,
the "Collateral"), in order to secure all obligations and indebtedness of the
Issuer under the Notes and any other obligation, now or hereafter arising, of
every kind and nature, owed by the Issuer under the Indenture or the Security
Agreements to the Holders of the Notes or to the Trustee or the Collateral
Agent. The Reserve Account Agent hereby acknowledges the Trustee's security
interest and Lien as set forth above. The Issuer shall take all actions
necessary on its part to insure the continuance of a first
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priority security interest in and Lien on the Collateral in favor of the Trustee
in order to secure all such obligations and indebtedness.
(b) The Issuer and the Trustee hereby irrevocably instruct the
Reserve Account Agent to, and the Reserve Account Agent shall, (i) (A) at all
times maintain sole dominion and control over funds and Temporary Cash
Investments in the Reserve Account, acting for the benefit of the Trustee and
the Holders of the Notes to the extent specifically required herein, (B)
maintain, or cause its agent within the State of New York to maintain,
possession of all certificated Temporary Cash Investments purchased hereunder
that are physically possessed by the Reserve Account Agent in order for the
Trustee to enjoy a continuous perfected first priority security interest therein
under the law of the State of New York (the Issuer hereby agreeing that in the
event any certificated Temporary Cash Investments are in the possession of the
Issuer or a third party, the Issuer shall use its best efforts to deliver all
such certificates to the Reserve Account Agent), (C) take all steps specified by
the Issuer pursuant to paragraph (a) above to cause the Trustee to enjoy a
continuous perfected first priority security interest and Liens under the New
York Uniform Commercial Code and any applicable law of the State of New York in
all Temporary Cash Investments purchased hereunder that are not certificated and
(D) maintain the Collateral free and clear of all Liens, security interests,
safekeeping or other charges, demands and claims against the Reserve Account
Agent of any nature now or hereafter existing in favor of anyone other than the
Trustee; (ii) promptly notify the Trustee if the Reserve Account Agent receives
written notice that any Person other than the Trustee has or claims to have a
Lien on or security interest in any portion of the Collateral and (iii) upon
receipt of written notice from one of the Trustee of the acceleration of the
maturity of the Notes, and direction from the Trustee to disburse all Available
Funds to the Trustee, as promptly as practicable disburse all Available Funds
held in the Reserve Account to the Trustee and transfer title to all Temporary
Cash Investments held by the Reserve Account Agent hereunder and constituting
Available Funds to the Trustee in the amounts set forth in such notice. The
Reserve Account Agent shall not have any right to receive compensation from the
Trustee and is without any authority to
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obligate the Trustee or to compromise or pledge its security interest and Lien
hereunder. Accordingly, the Reserve Account Agent is hereby directed to
cooperate with the Trustee in the exercise of its rights in the Collateral
provided for herein. In addition to the foregoing, the Reserve Account Agent
shall take all steps specified by the Issuer pursuant to paragraph (a) above to
cause the Trustee to enjoy a continuous perfected first priority security
interest in and Liens on the Collateral under any other applicable law.
(c) Any money and Temporary Cash Investments collected by the
Trustee pursuant to Section 6(b)(iii) shall be applied as provided in Section
6.02 of the Indenture.
(d) Upon demand, the Issuer will execute and deliver to the Trustee
such instruments and documents as the Trustee may reasonably deem necessary or
advisable to confirm or perfect under any applicable law the rights of the
Trustee under this Agreement and the Trustee's interest in the Collateral. The
Trustee shall be entitled to take all necessary action to preserve and protect
the security interest created hereby as a Lien and encumbrance upon the
Collateral.
(e) The Issuer hereby appoints the Trustee as its attorney-in-fact
with full power of substitution, exercisable upon the occurrence and during the
continuance of a Default or Event of Default, to do any act which the Issuer is
obligated hereto to do, and the Trustee may, but shall not be obligated to,
exercise such rights as the Issuer might exercise with respect to the Collateral
and take any action in the Issuer's name to protect the Trustee's Lien and
security interest hereunder. In addition to the rights provided under Section
6(b)(iii) hereof, upon an Event of Default and for so long as such Event of
Default continues, the Trustee 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 under the New York Uniform
Commercial Code or other applicable law, and the Trustee may also upon obtaining
possession of the Collateral as set forth herein, without notice to the Issuer
except as specified below, sell the Collateral or any part thereof in one or
more parcels at public or private sale, at any exchange, broker's board or at
any of the Trustee's
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office or elsewhere, for cash, on credit or for future delivery, and upon such
other terms as the Trustee may deem commercially reasonable. The Issuer
acknowledges and agrees that any such private sale may result in prices and
other terms less favorable to the seller than if such sale were a public sale.
The Issuer agrees that, to the extent notice of sale shall be required by law,
at least ten Business Days' notice to the Issuer of the time and place of any
public sale or the time after which any private sale is to be made shall
constitute reasonable notification. The Trustee shall not be obligated to make
any sale regardless of notice of sale having been given. The Trustee may adjourn
any public or private sale from time to time by announcement at the time and
place fixed therefor, and such sale may, without further notice, be made at the
time and place to which it was so adjourned.
7. TERMINATION. This Agreement shall terminate automatically ten
days following disbursement of all funds remaining in the Reserve Account
(including Temporary Cash Investments) and the payment in full of the Notes and
all other Obligations then due and owing under the Indenture and the Security
Agreements, unless sooner terminated by agreement of the parties hereto (in
accordance with the terms hereof, not in violation of the Indenture; the Trustee
may not earlier terminate this Agreement unless it has received the consent of
100% of the Holders of all of the Notes outstanding); PROVIDED, HOWEVER, that
the obligations of the Issuer under Section 2(d) and Section 5 (and any existing
claims thereunder) shall survive termination of this Agreement or the
resignation of the Reserve Account Agent; PROVIDED, FURTHER, HOWEVER, that until
such tenth day, the Issuer will cause this Agreement (or any permitted successor
agreement) to remain in effect and will cause there to be a Reserve Account
Agent (including any permitted successor thereto) acting hereunder (or under any
such permitted successor agreement).
8. MISCELLANEOUS. (a) WAIVER. Any party hereto may specifically
waive any breach of this Agreement by any other party, but no such waiver shall
be deemed to have been given unless such waiver is in writing, signed by the
waiving party and specifically designating the breach waived, nor shall any such
waiver constitute a continuing waiver of similar or other breaches.
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(b) INVALIDITY. If for any reason whatsoever any one or more of the
provisions of this Agreement shall be held or deemed to be inoperative,
unenforceable or invalid in a particular case or in all cases, such
circumstances shall not have the effect of rendering any of the other provisions
of this Agreement inoperative, unenforceable or invalid, and the inoperative,
unenforceable or invalid provision shall be construed as if it were written so
as to effectuate, to the maximum extent possible, the parties' intent.
(c) ASSIGNMENT. This Agreement is personal to the parties hereto,
and the rights and duties of any party hereunder shall not be assignable except
with the prior written consent of the other parties. Notwithstanding the
foregoing, this Agreement shall inure to and be binding upon the parties and
their successors and permitted assigns. Nothing herein shall restrict the
Reserve Account Agent from performing its duties through a subagent.
(d) BENEFIT. The parties hereto and their successors and permitted
assigns, but no others, shall be bound hereby and entitled to the benefits
hereof; PROVIDED, HOWEVER, that the Holders of the Notes and their permitted
assigns shall be entitled to the benefits hereof and to enforce this Agreement.
(e) TIME. Time is of the essence with respect to
each provision of this Agreement.
(f) ENTIRE AGREEMENT; AMENDMENTS. This Agreement, the Indenture and
the other Security Agreements contain the entire agreement among the parties
with respect to the subject matter hereof and supersede any and all prior
agreements, understandings and commitments, whether oral or written. This
Agreement may be amended only in accordance with Article X of the Indenture and
further by a writing signed by a duly authorized representative of each party
hereto.
(g) NOTICES. All notices, approvals, consents or other
communications required or desired to be given hereunder shall be in the form
and manner, and shall be delivered to the Issuer at its address as set forth in
Section 12.02 of the Indenture, to the Trustee at its address as set forth in
Section 12.02 of the Indenture, and to the Reserve Account Agent
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at Wilmington Trust Company c/o the Trustee at such address.
(h) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
(i) CAPTIONS. Captions in this Agreement are for convenience only
and shall not be considered or referred to in resolving questions of
interpretation of this Agreement.
(j) CHOICE OF LAW: WAIVER OF JURY TRIAL. The existence, validity,
construction, operation and effect of any and all terms and provisions of this
Agreement shall be determined in accordance with and governed by the laws of the
State of New York, without regard to principles of conflicts of law. The parties
to this Agreement hereby agree that jurisdiction over such parties and over the
subject matter of any action or proceeding arising under this Agreement may be
exercised by a competent Court of the State of New York, or by a United States
sitting in The City of New York. The Issuer hereby submits to the personal
jurisdiction of such courts, hereby waives personal service of process upon it
and hereby waives, to the extent permitted by applicable law, the right to a
trial by jury in any action or proceeding with the Reserve Account Agent. The
Issuer waives any objection that it may have to the location of the court in
which the Reserve Account Agent has commenced a proceeding described in this
paragraph including, without limitation, any objection to the laying of venue or
based on the grounds of forum non conveniens.
(k) AUTHORITY OF THE ISSUER; VALID AND BINDING AGREEMENT. The Issuer
hereby represents and warrants that this Agreement has been duly authorized,
executed and delivered on its behalf and constitutes the legal, valid and
binding obligation of the Issuer, subject as to enforceability to the effect of
any applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting creditors' rights generally or general principles of
equity and commercial reasonableness. The execution, delivery and performance of
this Agreement by the Issuer does not violate any applicable law or regulation
to which the Issuer is subject and does not require the consent of any
17
governmental or other regulatory body to which the Issuer is subject, except for
such consents and approvals as have been obtained and are in full force and
effect.
(l) AUTHORITY OF THE RESERVE ACCOUNT AGENT AND THE TRUSTEE VALID AND
BINDING AGREEMENT. Each of the Reserve Account Agent and the Trustee hereby
represents and warrants that this Agreement has been duly authorized, executed
and delivered on its behalf and constitutes its legal, valid and binding
obligation, subject as to enforceability to the effect of any applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally or general principles of equity and
commercial reasonableness. The execution, delivery and performance of this
Agreement by the Reserve Account Agent and the Trustee does not violate any
applicable law or regulation to which the Reserve Account Agent or the Trustee
is subject and does not require the consent of any governmental or other
regulatory body to which the Reserve Account Agent or the Trustee is subject,
except for such consents and approvals as have been obtained and are in full
force and effect.
(m) AGENT FOR SERVICE: SUBMISSION TO JURISDICTION: WAIVER OF
IMMUNITIES. By the execution and delivery of this Agreement, the Issuer (i)
acknowledges that it has, by separate written instrument, irrevocably designated
and appointed CT Corporation System, 1633 Broadway, New York, New York 10019 (or
any successor), as its authorized agent upon which process may be served in any
suit or proceeding arising out of or relating to this Agreement that may be
instituted in any federal or state court in the State of New York, or brought
under federal or state securities laws, and acknowledges that CT Corporation
System has accepted such designation, (ii) submits to the jurisdiction of any
such court in any such suit or proceeding, and (iii) agrees that service of
process upon CT Corporation System (or any successor) and written notice of said
service to the Issuer shall be deemed in every respect effective service of
process upon the Issuer in any such suit or proceeding. The Issuer further
agrees to take any and all action, including the execution and filing of any and
all such documents and instrument, as may be necessary to continue such
destination and appointment of CT Corporation System (or any successor) in full
force and effect so long as any
18
of the Secured Notes shall be outstanding.
To the extent that the Issuer has or hereafter may acquire any
immunity from jurisdiction of any court or from any legal process (whether
through service of notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) with respect to itself or its property, it
hereby irrevocably waives such immunity in respect of its obligations under this
Agreement, to the extent permitted by law.
[Signature Page Follows]
19
IN WITNESS WHEREOF, the parties have executed and delivered this
Reserve Account Agreement as of the day first above written.
RESERVE ACCOUNT AGENT:
WILMINGTON TRUST COMPANY,
as Reserve Account Agent
by /s/ CARYN M. O'MARA
Name: Caryn M. O'Mara
Title: Authorized Signer
TRUSTEE:
WILMINGTON TRUST COMPANY,
as Trustee
by /s/ CARYN M. O'MARA
Name: Caryn M. O'Mara
Title: Authorized Signer
ISSUER:
AMETHYST FINANCIAL COMPANY
LIMITED
by /s/ EARL W. MCNIEL
Name: Earl W. McNiel
Title: Treasurer
EXHIBIT A
Form of Disbursement Request
[Letterhead of the Issuer]
[Date]
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, DE 19890-0001
Attention: Corporate Trust Administration
Re: Disbursement Request No.
[indicate whether revised]
Ladies and Gentlemen:
We refer to the Reserve Account Agreement (the "Reserve Account
Agreement"), dated as of November 1, 1999, among you (the "Reserve Account
Agent"), Wilmington Trust Company, as Trustee, and Amethyst Financial Company
Limited, a British Virgin Islands limited liability company (the "Issuer").
Capitalized terms used herein shall have the meaning given in the Reserve
Account Agreement. This letter constitutes a Disbursement Request under Section
[3(a)(i)] [3(a)(ii)] of the Reserve Account Agreement.
The undersigned Officer of the Issuer hereby notifies you that
the Issuer has requested, and has satisfied the conditions contained in Section
11.05 of the Indenture for, the release of $[ ], from the Reserve Account which
was deposited therein as a result of [specify source of deposit, i.e., payment
of principal or interest made on Issuer Loans] of $[ ].
In connection with the requested disbursement, the undersigned
Officer of the Issuer hereby certifies to you that:
The Notes have [not], as a result of an Event of Default (as
defined in the Indenture), been accelerated and become due and payable.
2
[add wire instructions].
The Reserve Account Agent is entitled to rely on the foregoing in
disbursing funds relating to this Disbursement Request.
AMETHYST FINANCIAL COMPANY
LIMITED
by _______________________________
Name:
Title:
EXHIBIT B
Form of Disbursement Request
[Letterhead of the Issuer]
[Date]
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, DE 19890-0001
Attention: Corporate Trust Administration
Re: Disbursement Request No.
[indicate whether revised]
Ladies and Gentlemen:
We refer to the Reserve Account Agreement (the "Reserve Account
Agreement"), dated as of November 1, 1999, among you (the "Reserve Account
Agent"), Trustee, and Amethyst Financial Company Limited, a British Virgin
Islands limited liability company (the "Issuer"). Capitalized terms used herein
shall have the meaning given in the Reserve Account Agreement. This letter
constitutes a Disbursement Request under Section [3(a)(iii)] [3(a)(iv)] of the
Reserve Account Agreement.
The undersigned Officer of the Issuer hereby notifies you that
the Issuer has requested, and has satisfied the conditions contained in Section
11.05 of the Indenture for, the release of $[ ], from the Reserve Account which
was deposited therein as a result of [specify source of deposit, i.e., payment
of principal or interest made on Issuer Loans] of $[ ] to be applied as follows:
[ ].
In connection with the requested disbursement, the undersigned
Officer of the Issuer hereby certifies to you that:
2
The Notes have [not], as a result of an Event of Default (as
defined in the Indenture), been accelerated and become due and payable.
[add wire instructions].
The Reserve Account Agent is entitled to rely on the foregoing in
disbursing funds relating to this Disbursement Request.
AMETHYST FINANCIAL COMPANY
LIMITED
by _______________________________
Name:
Title: