PLEDGE AGREEMENT
EXHIBIT 10.27.2
THIS
PLEDGE AGREEMENT (this “Agreement”), is made as of June 29, 2006, by and between
GUARANTY BANK, FSB, a federal savings bank, as Agent for itself and certain other lenders (the
“Secured Party”), and PRIME OFFSHORE L.L.C.,
a Delaware limited liability company (“Pledgor”),
with reference to the following:
R
E C I T A L S:
A. Pledgor, the Secured Party, and the Lenders described therein, have entered into that
certain Credit Agreement of even date herewith (such agreement, as the same may be amended or
modified from time to time, being hereinafter referred to as the “Credit Agreement”).
B. Pledgor owns 100% of the general partner interest in the FWOE Partners L.P. (the
“Partnership”).
C. The Lenders have conditioned their commitments to lend under the Credit Agreement upon the
execution and delivery of this Agreement by the Pledgor.
D. Terms used herein but not otherwise defined herein shall have the meanings ascribed to them
in the Credit Agreement.
A G R E E M E N T S:
NOW, THEREFORE, in consideration of the premises and the mutual covenants, representations,
warranties and agreements contained herein, and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Pledgor hereby agrees with Secured Party for the
benefit of the Lenders as follows:
SECTION 1. Grant of Pledge Interest. As security for the obligations specified in
Section 2 hereof, Pledgor hereby grants to Secured Party a continuing security interest in all of
its right, title and interest in and to the following described property, all of which is
hereinafter collectively referred to as the “Collateral”:
(a)
Partnership Interests. Pledgor’s entire general partner interest in the
Partnership, which currently consists of 100% of the general partnership interest in the
Partnership. Without limiting the generality of the foregoing, Secured Party is hereby
granted a security interest in all of Pledgor’s right, title and interest arising under that
certain Amended and Restated Agreement of Limited Partnership dated August 22, 2005 (the
“Partnership Agreement”) including, without limitation, all rights of Pledgor to receive any
and all monies, properties, payments and distributions thereunder, whether in respect of
operating profits, sales, exchanges, condemnations or insured losses of any of Partnership’s
assets, the liquidation of any of Partnership’s assets and affairs, guaranteed payments,
reimbursement of expenses, or otherwise (collectively the “Distributions”); all rights,
powers and prerogatives of Pledgor arising under the Partnership Agreement or under law
relating to the general partnership interest of Pledgor, including, without limitation, all
rights of Pledgor, if any, to control and manage the business of the Partnership and to vote
on any matter specified therein or under law; all rights of Pledgor to cause an assignee to
be
substituted in the Partnership as a partner in the place and stead of Pledgor; all
rights and claims of Pledgor for damages arising out of or for breach of or default under
the Partnership Agreement; all rights of Pledgor to access to the books and records of the
Partnership and to other information concerning or affecting the Partnership and all rights
of Pledgor to terminate the Partnership Agreement, if any, to perform thereunder, to compel
performance and otherwise to exercise all remedies thereunder; in each of the foregoing
cases, whether such rights, interests and assets are now owned or hereafter acquired and
including all of Pledgor’s interest in any partnership or other entity which is a successor
to or continuation of either Partnership.
(b) Proceeds, Substitutions, Etc. To the extent not included in the items of
Collateral set forth in paragraph (a) above, any and all proceeds, products, increases,
substitutions, replacements, repairs, additions and accessions to or of such items of
Collateral, including, without limitation, all insurance and the proceeds thereof, all
condemnation proceeds or the proceeds of any other form of taking thereof and all real
property, equipment, inventory, accounts, general intangibles, contract rights, documents,
instruments, chattel paper, money, deposit accounts and other tangible or intangible
property received upon the sale or disposition of any of the foregoing now existing or
hereafter arising.
With respect to each particular item of Collateral, the security interest herein
granted shall attach immediately upon Pledgor’s execution hereof or as soon as Pledgor
acquires rights in and to such item of Collateral, whichever is later. Nothing in this
Agreement shall be deemed to constitute an assumption by Secured Party of any liability or
obligation of Pledgor with respect to any of the Collateral.
SECTION 2. Pledge for Obligations. This Agreement secures and the Collateral is
security for the prompt payment or performance in full when due, whether at stated maturity, by
acceleration or otherwise (including the payment of amounts which would become due but for the
operation of the automatic stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. § 362(a)) of
(a) all Indebtedness now or hereafter existing, whether for principal or interest (including,
without limitation, interest which, but for the filing of a petition in bankruptcy with respect to
the Partnership, would accrue on such obligations), or payments of fees, expenses or otherwise, and
(b) all obligations, indebtedness and liabilities of Pledgor or the Partnership now or hereafter
existing under this Agreement or any Loan Document (all such obligations, indebtedness and
liabilities referred to in (a) and (b) of this Section being the “Secured Obligations”).
SECTION 3. Assignment of Partnership Interest. Concurrently herewith Pledgor shall
execute and deliver to Secured Party a fully executed Assignment of Partnership Interest in the
form attached hereto as Exhibit “A” with respect to the Partnership. Pledgor hereby
authorizes Secured Party, after the occurrence of an Event of Default, after the expiration of any
applicable cure period therefor and upon the completion of a sale conducted pursuant to Article 9
of the Uniform Commercial Code (the “Code”) in effect in the State of Texas at that time, to
complete the Assignment of Partnership Interest, and if the assignee is not the Secured Party to
fill in the name of the purchaser of the Collateral at a sale conducted pursuant to Article 9 of
the Code as the assignee, and the date on which such sale was conducted, and, thereafter, to
deliver one fully executed original to the other partners of the Partnership. Pledgor agrees that
the Partnership and its constituent
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partners shall be entitled to rely conclusively on such Assignment of Partnership Interest and
shall have no liability to Pledgor for any loss or damage which Pledgor may incur by reason of
said reliance, this provision being expressly for the benefit of such partners.
SECTION 4. Pledgor Remains Liable. Anything herein to the contrary notwithstanding,
unless and until an Event of Default shall have occurred and the Collateral is sold at a
foreclosure sale, Pledgor shall remain liable under the Partnership Agreement to perform all of
Pledgor’s obligations thereunder to the same extent as if this Agreement had not been executed,
and the exercise by Secured Party of any of its rights hereunder shall not release Pledgor from
any of Pledgor’s obligations under the Partnership Agreement except as expressly otherwise
provided by law. Unless and until the Collateral is sold to Secured Party at a foreclosure sale,
neither Secured Party nor any Lender shall have any obligation or liability under the Partnership
Agreement by reason of this Agreement, nor shall Secured Party nor any Lender be obligated to
perform any of the obligations of Pledgor thereunder or to take any action to collect or to
enforce any claim for payment assigned hereunder. From and after the date the Collateral is sold
at a foreclosure sale, the purchaser thereof shall be bound by all applicable provisions of the
Partnership Agreement.
SECTION 5. Representations and Warranties. Pledgor hereby represents and warrants to
Secured Party on behalf of the Lenders that:
(a) Pledgor is duly organized, existing and in good standing in its jurisdiction of
organization and has full power and authority to make and deliver this Agreement.
(b) The execution, delivery and performance of this Agreement by the Pledgor have been
duly authorized by all necessary organizational action and do not and will not violate the
provisions of, or constitute a default under, any presently applicable law or its
organizational documents or any agreement presently binding on it.
(c) This Agreement has been duly executed and delivered by the authorized officers,
partners, managers or members, as the case may be, of Pledgor and constitutes its lawful,
binding and legally enforceable obligation, subject, as to enforcement, only to bankruptcy,
insolvency, reorganization, moratorium or similar laws then in effect affecting the rights
of creditors generally and general equitable principles.
(d) The authorization, execution, delivery and performance of this Agreement does not
require notification to, registration with, or consent or approval by, any federal, state or
local regulatory body or administrative agency.
(e) Pledgor’s rights to the Distributions are valid, enforceable under the Partnership
Agreement in accordance with its terms and are not subject to any defense, offset,
counterclaim or contingency whatsoever, except as provided in the Partnership Agreement.
(f) Except for the security interest granted herein, Pledgor has, and will at all times
during the term hereof have, valid title to all and every part of the Collateral, free and
clear of any lien or security interest.
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(g) Upon the execution and delivery of this Agreement by Pledgor and the filing of
appropriate financing statements with the appropriate governmental agencies or, as
applicable, upon Secured Party’s taking possession of the Collateral, Secured Party shall
have a perfected security interest in and to the Collateral having first priority for the
full amount of all of the Secured Obligations.
(h) Neither the execution and delivery of this Agreement by Pledgor nor the lawful
exercise by Secured Party of any of its rights and remedies hereunder, whether upon default
or otherwise, will result in a breach of or constitute a default under the Partnership
Agreement or any other agreement or instrument to which Pledgor is a party or by which any
of the Collateral is bound, nor violate any law or any rule or regulation of any
administrative agency or any order, writ, injunction or decree of any court or
administrative agency binding upon Pledgor, nor does any of the foregoing require the
consent of any person, entity or governmental agency or any notice or filing with any
governmental or regulatory body (except as may be required in connection with any sale or
disposition of the Collateral by laws affecting the offering and sale of securities
generally).
(i) There is no action nor legal, administrative or other proceeding pending or, to
the best of Pledgor’s knowledge, threatened which affects Pledgor’s title to the Collateral
or Pledgor’s grant of a security interest hereunder, nor does Pledgor know of any basis for
the assertion of any such claim.
(j) The place where Pledgor keeps its books and records concerning the Collateral and
a true, complete and conformed copy of each Partnership Agreement is and will remain 0000
Xxxx Xxxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000, or at such other address as Pledgor may
designate in writing to Secured Party. None of the Collateral is evidenced by a promissory
note or other instrument.
(k) Any and all information heretofore furnished to Secured Party by Pledgor in
connection with the financial condition, assets, liabilities, business or prospects of the
Partnership or the value or condition of the Collateral is true and correct in all material
respects when furnished, and all such information hereafter furnished to Secured Party by
Pledgor will be true and correct in all material respects when furnished.
SECTION 6. Further Assurances. Pledgor agrees at any time and from time to time, at
the expense of Pledgor, promptly to execute and to deliver all further instruments and documents,
and to take all further action, that may be necessary as reasonably requested by Secured Party in
order to perfect and to protect any security interest granted or purported to be granted hereby or
to enable Secured Party to exercise and to enforce its rights and remedies hereunder with respect
to any of the Collateral.
SECTION 7. Affirmative and Negative Covenants.
(a) Pledgor shall not (i) sell, assign, transfer, exchange, lease, lend or dispose of
(directly, indirectly, or voluntarily), or grant any option with respect to, any of the
Collateral, or (ii) create or permit to exist any security interest or lien in or with
respect to the Collateral, except for the security interest in favor of Secured Party. The
inclusion of “proceeds” as a
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component of the Collateral shall not be deemed a consent by Secured Party or the Lenders
to any sale, assignment, transfer, exchange, lease, loan, granting of an option with respect to or
disposition of all or any part of the Collateral.
(b) Pledgor shall not take any action in Pledgor’s capacity as general partner of the
Partnership to (i) cause or permit the Partnership Agreement to be amended or terminated; (ii)
waive, postpone or modify Pledgor’s rights to receive any Distributions under the Partnership
Agreement; or (iii) waive any default or breach of the Partnership Agreement.
(c) Pledgor shall, at its own expense, perform and observe all of the terms and provisions of
the Partnership Agreement to be performed or observed by Pledgor, maintain the Partnership
Agreement in full force and effect, and enforce Pledgor’s fights under the Partnership Agreement in
accordance with its terms. Pledgor shall promptly deliver to Secured Party any notice of default
which Pledgor receives with respect to the Partnership Agreement.
(d) Pledgor shall comply with all laws, statutes and regulations pertaining to its ownership
of the Collateral. Pledgor shall pay or cause to be paid all taxes and other levies with respect to
the Collateral when the same become due and payable except such as are being contested in good
faith by appropriate proceedings, where the effect of such proceedings is to stay any enforcement
in respect of such unpaid taxes.
(e) Pledgor shall promptly notify Secured Party in writing of any event which materially
adversely affects the value of the Collateral, the ability of Pledgor or Secured Party to dispose
of the Collateral or the rights and remedies of Secured Party in relation thereto, including, but
not limited to, the levy of any legal process against the Collateral and the adoption of any order,
arrangement or procedure affecting the Collateral, whether governmental or otherwise. Pledgor shall
also promptly notify Secured Party in writing of any event which adversely affects the financial
condition, assets, liabilities, business, operations or prospects of the Partnership in any
material respect.
SECTION 8. Rights of Pledgor with Respect to Collateral.
(a) So long as no Event of Default shall have occurred and be continuing, Pledgor shall be
entitled to exercise any and all voting and other consensual and other rights pertaining to the
Collateral, or any part thereof, for any purpose not inconsistent with the terms of this Agreement
(including, without limitation, Section 7(b) hereof), the Note or any other Loan Document;
provided, however, that Pledgor shall not exercise or shall refrain from exercising any such right
if it would result in an Event of Default.
(b) Upon the occurrence and during the continuance of an Event of Default:
(i) Secured Party shall have the right to have the Collateral transferred into
the name of Secured Party pursuant to Section 3 hereof.
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(ii) All rights of Pledgor to exercise the voting and other consensual rights
which Pledgor would otherwise be entitled to exercise pursuant to Section 8(a)
above and to receive Distributions shall cease, and all such rights shall thereupon
become vested in Secured Party, who shall thereafter upon notice to Pledgor have
the sole right to exercise such voting and other consensual rights and to receive
100 percent of all Distributions, which shall be promptly applied by Secured Party
against the Secured Obligations in the order and manner specified in Section 12(d)
hereof.
(iii) All Distributions which are received by Pledgor contrary to the
provisions of Section 8(b)(ii) shall be received in trust for the benefit of
Secured Party, shall be segregated from other funds of Pledgor, and forthwith shall
be paid over to Secured Party as pledged Collateral in the same form as received
(with any necessary endorsements).
SECTION 9. Secured Party May Perform. If Pledgor fails to perform any agreement
contained herein, Secured Party may itself perform or cause the performance of such agreement, and
the expenses of Secured Party incurred in connection therewith shall be payable by Pledgor under
Section 16. However, nothing in this Agreement shall obligate Secured Party to act.
SECTION
10. Secured Party Appointed Attorney-in-Fact. Pledgor hereby appoints Secured
Party Pledgor’s attomey-in-fact with full authority in the place and stead of Pledgor and in the
name of Pledgor or otherwise, from time to time (but only upon an Event of Default) in Secured
Party’s discretion to take any action and to execute any instrument which Secured Party may deem
necessary or advisable to accomplish the purposes of this Agreement, including, without
limitation, to receive, endorse and collect all instruments made payable to Pledgor representing
any dividend or other Distribution in respect of the Collateral or any part thereof and to give
full discharge for the same.
SECTION 11. Reasonable Care. Secured Party shall be deemed to have exercised
reasonable care in the custody and preservation of the Collateral in its possession if the
Collateral is accorded treatment substantially equal to that which Secured Party accords its own
property, it being understood that Secured Party shall not have responsibility for (a) ascertaining
or taking action with respect to calls, conversions, exchanges, maturities, tenders or other
matters relative to any Collateral, whether or not Secured Party has or is deemed to have knowledge
of such matters, or (b) taking any necessary steps to preserve rights against any parties with
respect to any Collateral.
SECTION 12. Remedies Upon Default. If any Event of Default shall have occurred and be
continuing, Secured Party is, subject to the Credit Agreement, entitled to exercise any one or
more of the following remedies:
(a) 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 under the Code, and Secured Party may also without notice
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 Secured Party’s
offices or elsewhere, for cash, on credit or for future delivery, and upon such other terms
as Secured Party in its sole discretion may deem commercially reasonable. Pledgor agrees
that at least
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20 days’ written notice to Pledgor 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. Secured Party shall
not be obligated to make any sale of Collateral regardless of notice of sale having been given.
Secured Party 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. Pledgor hereby waives any claims against Secured Party arising by
reason of the fact that the price at which any Collateral may have been sold at such a private
sale was less than the price which might have been obtained at a public sale. To the extent
permitted by law, Secured Party may be the purchaser of the Collateral.
(b) Pledgor recognizes that, by reason of certain prohibitions contained in the Securities Act
of 1933, as amended (the “Securities Act”), and applicable state securities laws, Secured Party may
be compelled, with respect to any sale of all or any part of the Collateral, to limit purchasers to
those who will agree, among other things, to acquire the Collateral for their own account, for
investment and not with a view to the distribution or resale thereof Pledgor acknowledges that any
such private placement, whether through public or private sale under the Code, may be at prices and
on terms less favorable to Secured Party than those obtainable through a public offering made
pursuant to a registration statement under the Securities Act, and, notwithstanding such
circumstances, agrees that any such private placement, whether through public or private sale under
the Code, shall be deemed to have been made in a commercially reasonable manner and that Secured
Party shall have no obligation to engage in a public offering and no obligation to delay the sale
of any Collateral for the period of time necessary to permit the issuer thereof to register it for
a form of public offering requiring registration under the Securities Act or under applicable state
securities laws, even if Pledgor would agree to do so.
(c) If Secured Party decides to exercise its right to sell any or all of the Collateral, upon
written request, Pledgor shall furnish to Secured Party all such information as Secured Party may
reasonably request in order to determine the Collateral which may be sold by Secured Party as
exempt transactions under the Securities Act and the rules of the Securities and Exchange
Commission thereunder, as the same are from time to time in effect.
(d) Any cash held by Secured Party as Collateral and all cash proceeds received by Secured
Party in respect of any sale of, collection from, or other realization upon all or any part of the
Collateral shall be promptly applied (after payment of any amounts payable to Secured Party
pursuant to Section 16) in whole or in part by Secured Party against all or any part of the Secured
Obligations in accordance with the Credit Agreement. Any surplus of such cash or cash proceeds held
by Secured Party and remaining after payment in full of all the Secured Obligations shall be paid
over to Pledgor or to whomsoever may be lawfully entitled to receive such surplus.
(e) Secured Party shall not be obligated to resort to its rights or remedies with respect to
any other security for or guaranty of payment of the Secured Obligations before resorting to its
rights and remedies against Pledgor hereunder. All rights and remedies of Secured Party shall be
cumulative and not in the alternative.
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(f) To the extent the Collateral consists of Pledgor’s entire interest in the
Partnership, Secured Party may pursue and enforce its rights and remedies only as to the
Distributions, reserving the discretion to pursue or not pursue its rights as to the balance
of the Collateral at a later date.
(g) To the extent the exercise by Secured Party of any remedy afforded herein requires
the consent or approval of any governmental agency or regulatory body, the right of Secured
Party to exercise such remedy shall be conditioned upon receipt by Secured Party of such
consent or approval. In furtherance of the exercise by Secured Party of the power of sale
granted to it herein, Pledgor agrees that, upon request of Secured Party and without expense
to Secured Party, Pledgor shall use its reasonable best efforts to obtain all necessary
approvals from all applicable federal, state and local governmental agencies, authorities
and instrumentalities for the sale by Secured Party of the Collateral, or any part thereof,
or the transfer to the successful bidder or prospective purchaser of any governmental
licenses or franchise necessary to allow it to conduct the business or activities for which
the Collateral is intended.
SECTION 13. No Partner. Notwithstanding anything to the contrary contained herein,
until such time, if any, as Secured Party or a successor thereto acquires the Collateral following
the occurrence of an Event of Default, neither Secured Party nor any Lender nor any
successor-in-interest thereof shall be deemed to be a partner in the Partnership. The security
interests granted to Secured Party herein are collateral assignments only, serving as security for
the Secured Obligations.
SECTION 14. Liability and Indemnification. Secured Party shall not
be liable to pledgor for any act or omission by Secured Party unless Secured Party’s conduct
constitutes willful misconduct or gross negligence. Pledgor agrees to indemnify and to hold Secured
Party harmless from and against all losses, liabilities, claims, damages, reasonable costs and
expenses (including reasonable attorneys’ fees and disbursements) with respect to (i) any action
taken or any omission by Secured Party with respect to this Agreement, provided that Secured
Party’s conduct does not constitute willful misconduct or
negligence, (ii) any claims arising out
of Pledgor’s ownership of the collateral or Secured Party’s security interest therein, or (iii)
Secured Party’s enforcing this Agreement against Pledgor whether or not suit is filed, including,
without limitation, all reasonable costs, reasonable attorneys’ fees and expenses actually expended
or incurred by Secured Party in connection with, or in defense of, any insolvency, bankruptcy,
reorganization, arrangement or other similar proceeding involving pledgor which in any way affects
the exercise by Secured Party of its rights and remedies hereunder.
SECTION 15. Continuing, Security Interest: Assignment of Obligations. This
Agreement shall create a continuing security interest in the Collateral and shall (a) remain in
full force and effect until payment in full of the Secured Obligations or the written termination
of this Agreement by Secured Party, (b) be binding upon Pledgor, its successors and assigns, (c)
inure, together with the rights and remedies of Secured Party hereunder, to the benefit of Secured
Party, the Lenders, and their respective successors, transferees and assigns, (d) constitute, along
with the other documents referred to herein, the entire agreement between Pledgor and Secured Party
with respect to the
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subject matter hereof, and (e) be severable in the event that one or more of the provisions
herein is determined to be illegal or unenforceable.
SECTION 16. Expenses. Pledgor will, upon demand, pay to Secured Party all reasonable
expenses, including the reasonable fees and expenses of its counsel and of any experts and agents,
which Secured Party may incur in connection with (a) the administration of this Agreement, (b) the
custody or preservation of, or the sale of, collection from, or other realization upon, any of the
Collateral, (c) the exercise or enforcement of any of the rights of Secured Party hereunder, and
(d) the failure by Pledgor to perform or to observe any of the provisions hereof.
SECTION 17. Obligations Unconditional. The obligations of Pledgor under this
Agreement shall be absolute and unconditional and shall not be released, discharged, reduced, or
in any way impaired by any circumstance whatsoever, including, without limitation, any amendment,
modification, extension or renewal of this Agreement, the Secured Obligations, or any document or
instrument evidencing, securing or otherwise relating to the Secured Obligations, or any release,
subordination, or impairment of collateral, or any waiver, consent, extension, indulgence,
compromise, settlement, or other action or inaction in respect of this Agreement, the Secured
Obligations or any document or instrument evidencing, securing or otherwise relating to the
Secured Obligations, or any exercise or failure to exercise any right, remedy, power or privilege
in respect of the Secured Obligations. No failure on the part of Secured Party to exercise and no
delay in exercising, and no course of dealing with respect to, any right, power, or privilege
under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise
of any right, power or privilege under this Agreement preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights provided for in this
Agreement are cumulative and not exclusive of any rights and remedies provided by law.
SECTION 18. Return of Collateral. Subject to any duty imposed by law or by contract to
the holder of any subordinate lien on the Collateral known to Secured Party, and subject to the
direction of a court of competent jurisdiction, upon payment in full of the Secured Obligations,
Pledgor shall be entitled to return of the Collateral in the possession of Secured Party; provided,
however that Secured Party shall not be obligated to return to Pledgor or deliver to the holder of
any subordinate lien any such Collateral until such time, but in no event to exceed ninety days
after payment in full of the Secured Obligations, as Secured Party is reasonably satisfied that the
payment of the Secured Obligations is not subject to being recaptured under applicable bankruptcy
laws. The return of Collateral, however effected, shall be without recourse to Secured Party. The
return of Collateral shall be effected without representation or warranty and shall entitle Pledgor
to all necessary endorsements, without recourse or warranty.
SECTION
19. Amendments, Waiver. No amendment or waiver of any provision of this
Agreement nor consent to any departure by Pledgor herefrom shall in any event be effective unless
the same shall be in writing and signed by Secured Party and Pledgor, and then such waiver or
consent shall be effective only in the specific instance and for the specific purpose for which
given.
SECTION 20. Notices. All notices, requests, demands, directions and other
communications provided for hereunder must be in writing and must be mailed, certified or
registered mail, return receipt requested, telegraphed, telecopied, delivered or sent by cable to
the appropriate party (and to the persons so designated to receive copies thereof) at the
addresses set
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forth below. Any notice, request, demand, direction or other communication required or permitted
hereunder which is given by mail will be effective on the earlier of receipt or the third business
day after deposit in the United States mail with certified or registered postage prepaid; if given
by telegraph or cable, when delivered to the telegraph company with charges prepaid; if given by
telecopier, when received; or if given by personal delivery, when delivered. Notices shall be
addressed as follows:
| If to Pledgor: | Prime Offshore L.L.C. | |||
| 0000 Xxxx Xxxxxxx, Xxxxx 0000 | ||||
| Xxxxxxx, Xxxxx 00000 | ||||
| Attn: Xxx X. Xxxxx | ||||
| If to Secured Party: | Guaranty Bank, FSB, as Administrative Agent | |||
| 000 Xxxx Xxxxxx, Xxxxx 0000 | ||||
| Xxxxxxx, Xxxxx 00000 | ||||
| Attention: Xxxxx X. Xxxxxx |
Addresses for notices, requests, demands, directions and other communications provided for
hereunder, and/or the persons so designated to receive copies thereof, may be redesignated by a
party by a written notice sent to all of the other parties hereunder.
SECTION 21. Secured Party and Lenders. Secured Party is the agent for each Lender
under the Credit Agreement. The security interest and all rights granted to Secured Party under or
in connection with this Agreement are for each Lender’s ratable benefit. Secured Party may,
without the joinder of any Lender, exercise any rights or remedies in Secured Party’s or Lenders’
favor under or in connection with this Agreement, including, without limitation, conducting any
foreclosure sales and executing full or partial releases of, amendments or modifications to, or
consents or waivers under this Agreement. Secured Party’s and each Lender’s rights and obligations
vis-à-vis each other may be subject to one or more separate agreements between those parties.
However, Pledgor need not inquire about any such agreement and is not subject to any terms of it.
Therefore, neither Pledgor nor its successors or assigns is entitled to any benefits or provisions
of any such separate agreement or is entitled to rely upon or raise as a defense any party’s
failure or refusal to comply with the provisions of it.
SECTION 22. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which together shall constitute one and the same
instrument.
SECTION
23. Governing Law, Terms. This Agreement is to be governed by and construed
in accordance with the laws of the State of Texas.
SECTION 24. Reinstatement of Rights. Secured Party’s rights hereunder shall be
reinstated and revived, and the enforceability of this Agreement shall continue, with respect to
any amount at any time paid on account of the Secured Obligations which thereafter shall be
required to be restored or returned by Secured Party upon the bankruptcy, insolvency or
reorganization of Pledgor, or any other person, all as though such amount had not been paid.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this Pledge Agreement as of
the date first above written.
| SECURED PARTY: | ||||||
| GUARANTY BANK, FSB | ||||||
| as Agent | ||||||
| By: | /s/ Xxxxx X. Xxxxxx, III | |||||
| Xxxxx X. Xxxxxx, III | ||||||
| Senior Vice President | ||||||
| PLEDGOR: | ||||||
| PRIME OFFSHORE L.L.C. | ||||||
| By: | /s/ Xxx X. Xxxxx | |||||
| Xxx X. Xxxxx | ||||||
| President and Chief Financial Officer | ||||||
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EXHIBIT “A”
ASSIGNMENT OF PARTNERSHIP INTEREST
For good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Prime Offshore L.L.C., a Delaware limited liability
company (“Assignor”) hereby
sells, assigns, transfers and conveys to __________ (“Assignee”), all of its right, title
and interest in and to its partnership interest in FWOE Partners L.P., a Delaware limited partnership (the “Partnership”), including Assignor’s right to receive from the Partnership all amounts payable to Assignor from and after the date hereof in consideration of the foregoing transfer, Assignee agrees that, subject to the immediately preceding sentence, it shall be bound by all of the terms and provisions of the partnership agreement governing the Partnership and shall perform and observe all of the covenants, duties and obligations contained therein from and after the date of Assignee’s admission as a partner in the Partnership.
and interest in and to its partnership interest in FWOE Partners L.P., a Delaware limited partnership (the “Partnership”), including Assignor’s right to receive from the Partnership all amounts payable to Assignor from and after the date hereof in consideration of the foregoing transfer, Assignee agrees that, subject to the immediately preceding sentence, it shall be bound by all of the terms and provisions of the partnership agreement governing the Partnership and shall perform and observe all of the covenants, duties and obligations contained therein from and after the date of Assignee’s admission as a partner in the Partnership.
IN WITNESS WHEREOF, this Assignment of Partnership Interest is executed as of June 29, 2006.
| ASSIGNOR: | ||||||
| PRIME OFFSHORE L.L.C. | ||||||
| By: | ||||||
| Xxx X. Xxxxx | ||||||
| President and Chief Financial Officer | ||||||
| ASSIGNEE: | ||||||
| a | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
A-i
