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EXHIBIT 10.11
PLEDGE AND SECURITY AGREEMENT
This PLEDGE AND SECURITY AGREEMENT, dated as of
________________, 1998, is by and among Bank One, N.A., as pledge agent (in
such capacity, the "Pledge Agent"), Bank One, N.A., as Trustee (in such
capacity, the "Trustee") under the Indenture (as defined herein), and First
Wave Marine, Inc., a Delaware corporation (the "Company").
RECITALS
A. Pursuant to the Indenture, dated as of the date hereof, by
and among the Company, the Trustee and the Subsidiary Guarantors named therein
(as such may be amended or supplemented from time to time, the "Indenture"),
the Company is issuing $90,000,000 aggregate principal amount of its
____________% Senior Notes Due 2008 (the "Notes").
B. As security for its obligations under the Notes and the
Indenture, the Company hereby grants to the Trustee, for the benefit of the
Trustee and the holders of the Notes, a security interest in and lien upon the
Pledge Account (as defined herein).
C. 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 Pledge Account and released from the security interest and
Lien described above.
NOW, THEREFORE, the parties hereto, intending to be legally
bound, hereby agree as follows:
1. DEFINED TERMS. All capitalized terms used but not
defined herein shall have the meanings ascribed to them 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:
"Agreement" means this Pledge and Security Agreement, as
amended or supplemented from time to time.
"Applied" means that disbursed funds have been applied (i) to
the payment of interest on the Notes, (ii) pursuant to Section 3.3, or (iii)
pursuant to Section 6(b) (iii).
"Available Funds" means (A) the sum of (i) the Initial Pledge
Amount and (ii) interest earned or dividends paid on the funds in the Pledge
Account (including holdings of Government Securities), less (B) the aggregate
disbursements previously made pursuant to this Agreement.
"Collateral" shall have the meaning given in Section 6(a)
hereof.
"Initial Pledge Amount" shall mean approximately
$_________________.
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"Payment Notice and Disbursement Request" means a notice sent
by the Trustee to the Pledge Agent requesting a disbursement of funds from the
Pledge Account, in substantially the form of Exhibit A hereto. Each Payment
Notice and Disbursement Request shall be signed by an officer of the Trustee.
"Pledge Account" shall mean the pledge account established
pursuant to Section 2.2.
2. PLEDGE ACCOUNT; PLEDGE AGENT.
2.1 Appointment of Pledge Agent. The Company and the
Trustee hereby appoint the Pledge Agent, and the Pledge Agent hereby accepts
appointment, as Pledge Agent, under the terms and conditions of this Agreement.
2.2 Establishment of Pledge Account. On the Closing
Date, the Pledge Agent shall establish a pledge account entitled "Pledge
Account pledged by First Wave Marine, Inc. to Bank One, N.A., as Trustee" (the
"Pledge Account") at its office located at ____________________________________.
All funds accepted by the Pledge Agent pursuant to this Agreement shall be held
for the exclusive benefit of the Trustee and the holders of the Notes, as
secured parties hereunder (the "Beneficiaries"). All such funds shall be held
in the Pledge Account until disbursed or paid in accordance with the terms
hereof. The Pledge Account, the funds held therein and any Government
Securities held by the Pledge Agent shall be under the sole dominion and
control of the Pledge Agent for the benefit of the Beneficiaries. On the
Closing Date, the Company shall deliver the Initial Pledge Amount to the Pledge
Agent for deposit into the Pledge Account against the Pledge Agent's written
acknowledgment and receipt.
2.3 Pledge Agent Compensation. The Company shall pay to
the Pledge Agent such compensation for services to be performed by it under
this Agreement as the Company and the Pledge Agent may agree in writing from
time to time. The Pledge Agent shall be paid any compensation owed to it
directly by the Company and shall not disburse from the Pledge Account any such
amounts.
The Company shall reimburse the Pledge Agent upon request for
all reasonable expenses, disbursements, and advances incurred or made by the
Pledge Agent in implementing any of the provisions of this Agreement, including
compensation and the reasonable expenses and disbursements of its counsel. The
Pledge Agent shall be paid any such expenses owed to it directly by the Company
and shall not disburse from the Pledge Account any such amounts.
2.4 Investment of Funds in Pledge Account. Funds
deposited in the Pledge Account shall be invested and reinvested only upon the
following terms and conditions:
(a) Acceptable Investments. All funds deposited
or held in the Pledge Account at any time shall be invested by the
Pledge Agent in Government Securities in accordance with the Initial
Instructions annexed hereto as Exhibit B and thereafter the Company's
written instructions from time to time to the Pledge Agent; provided,
however,
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that the Company shall only designate investment of funds in
Government Securities maturing in an amount sufficient to and/or
generating interest income sufficient to, when added to the balance of
funds held in the Pledge Account, provide for the payment of interest
on the outstanding Notes on each Interest Payment Date beginning on
and including ________________,1998 and through and including the
Interest Payment Date on ________________, 1999; provided, further,
however, that any such written instruction shall specify the
particular investment to be made, shall state that such investment is
authorized to be made hereby and in particular satisfies the
requirements of the preceding proviso and Section 2.4(e), shall
contain the certification referred to in Section 2.4(b), if required,
and shall be executed by an Officer of the Company. All Government
Securities shall be assigned to and held in the possession of, or, in
the case of Government Securities maintained in book entry form with
the Federal Reserve Bank, transferred to a book entry account in the
name of, the Pledge Agent, for the benefit of the Trustee, with such
guarantees as are customary, except that Government Securities
maintained in book entry form with the Federal Reserve Bank shall be
transferred to a book entry account in the name of the Pledge Agent at
the Federal Reserve Bank that includes only Government Securities held
by the Pledge Agent for its customers and segregated by separate
recordation in the books and records of the Pledge Agent. The Pledge
Agent shall not be liable for losses on any investments made by it
pursuant to and in compliance with such instructions. In the absence
of qualifying instructions from the Company that meet the requirements
of this Section 2.4(a), the Pledge Agent shall have no obligation to
invest funds held in the Pledge Account.
(b) Security Interest in Investments. No
investment of funds in the Pledge Account shall be made unless the
Company has certified to the Pledge Agent and the Trustee that, upon
such investment, the Trustee will have a first priority perfected
security interest in the applicable investment. If a certificate as
to a class of investments has been provided to the Pledge Agent, a
certificate 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 Pledge Agent may conclusively assume. On the
Closing Date, and from time to time thereafter as required by Section
11.2 of the Indenture and as required by the TIA, until the
termination of this Agreement, the Trustee shall receive an Opinion of
Counsel to the Company, dated each such date as applicable, which
opinion shall meet the requirements of Section 314(b) of the TIA and
shall comply with Section 11.2 of the Indenture.
(c) Interest and Dividends. All interest earned
and dividends paid on funds invested in Government Securities shall be
deposited in the Pledge Account as additional Collateral for the
exclusive benefit of the Beneficiaries and, if not required to be
disbursed in accordance with the terms hereof, shall be reinvested in
accordance with the terms hereof at the Company's written instruction,
and shall be available for disbursement to the Company upon
satisfaction of the conditions set forth in Section 3.3.
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(d) Limitation on Pledge Agent's
Responsibilities. The Pledge Agent's sole responsibilities under this
Section 2 shall be (A) to retain possession of certificated Government
Securities (except, however, that the Pledge Agent may surrender
possession to the issuer of any such Government Security for the
purposes of effecting assignment, crediting interest, or reinvesting
such security or reducing such security to cash) and to be the
registered or designated owner of Government Securities which are not
certificated, (B) to follow the Company's written instructions given
in accordance with Section 2.4(a), (C) to invest and reinvest funds
pursuant to this Section 2.4 and (D) to use reasonable efforts to
reduce to cash such Government Securities as may be required to fund
any disbursement or payment in accordance with Section 3. In
connection with clause (A) above, the Pledge Agent will maintain
continuous possession in the State of New York of certificated
Government Securities and cash included in the Collateral and will
cause uncertificated Government Securities to be registered in the
book-entry system of, and transferred to an account of the Pledge
Agent or a sub-agent of the Pledge Agent at, the Federal Reserve Bank
of New York or Dallas. Except as provided in Section 6, the Pledge
Agent shall have no other responsibilities with respect to perfecting
or maintaining the perfection of the Trustee's security interest in
the Collateral and shall not be required to file any instrument,
document or notice in any public office at any time or times. In
connection with clause (D) above and subject to the following
sentence, the Pledge Agent shall not be required to reduce to cash any
Government Securities to fund any disbursement or payment in
accordance with Section 3 in the absence of written instructions
signed by an Officer of the Company specifying the particular
investment to liquidate. If no such written instructions are
received, the Pledge Agent may liquidate those Government Securities
having the lowest interest rate per annum or if none such exist, those
having the nearest maturity.
(e) Manner of Investment. Funds deposited in the
Pledge Account shall initially be invested in accordance with the
Initial Instructions (attached hereto as Exhibit B), which is in a
manner such that there will be sufficient funds available without any
further investment by the Company to cover all interest due on the
outstanding Notes, as such interest becomes due, for each Interest
Payment Date beginning on and including the Closing Date and through
and including ________________, 1999, provided that such investments
shall have such maturities and/or interest payment dates such that
funds will be available with respect to each such Interest Payment
Date no later than the time the Pledge Agent is required to disburse
such funds to the Trustee pursuant to Section 3.1. The Pledge Agent
shall have no responsibility for determining whether funds held in the
Pledge Account shall have been invested in such a manner so as to
comply with the requirements of this subsection (e)
2.5 Substitution of Pledge Agent. The Pledge Agent may
resign by giving no less than 20 Business Days prior written notice to the
Company and the Trustee. Such resignation shall take effect upon the later to
occur of (i) delivery of all funds and Government Securities maintained by the
Pledge Agent hereunder and copies of all books, records, plans and other
documents in the Pledge Agent's possession relating to such funds or Government
Securities or this Agreement to a
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successor Pledge Agent mutually approved by the Company and the Trustee (which
approvals shall not be unreasonably withheld or delayed) and (ii) the Company,
the Trustee and such successor agent enter 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. The Pledge Agent shall thereafter
be discharged of all obligations under this Agreement and shall have no further
duties, obligations or responsibilities in connection herewith, except as set
forth in Section 4. If a successor pledge agent has not been appointed or has
not accepted such appointment within 20 Business Days after notice of
resignation is given to the Company, the Pledge Agent may apply to a court of
competent jurisdiction for the appointment of a successor pledge agent.
2.6 Pledge Account Statement. At least 30 days prior to
each Interest Payment Date, the Pledge Agent shall deliver to the Company and
the Trustee a statement setting forth with reasonable particularity the balance
of funds then in the Pledge Account and the manner in which such funds are
invested. The parties hereto irrevocably instruct the Pledge Agent that on the
first date upon which the balance in the Pledge Account (including the holdings
of all Government Securities) is reduced to zero, the Pledge Agent shall
deliver to the Company and to the Trustee a notice that the balance in the
Pledge Account has been reduced to zero.
3. DISBURSEMENTS.
3.1 Payment Notice and Disbursement Request;
Disbursements. The Trustee shall, at least five Business Days prior to an
Interest Payment Date, submit to the Pledge Agent a completed Payment Notice
and Disbursement Request substantially in the form of Exhibit A hereto.
The Pledge Agent's disbursement pursuant to any Payment Notice
and Disbursement Request shall be subject to the satisfaction of the applicable
conditions set forth in Section 3.2. If such Payment Notice and Disbursement
Request is not rejected by the Pledge Agent, the Pledge Agent, as soon as
reasonably practicable on the Interest Payment Date, but in no event later than
12:00 Noon (New York City time) on the Interest Payment Date, shall disburse
the funds requested in such Payment Notice and Disbursement Request by wire or
book-entry transfer of immediately available funds to the account of the
Trustee for the benefit of the Beneficiaries. The Pledge Agent shall notify
the Trustee as soon as reasonably possible (but not later than two Business
Days from the date of receipt of the Payment Notice and Disbursement Request)
if any Payment Notice and Disbursement Request is rejected and the reason(s)
therefor. In the event such rejection is based upon nonsatisfaction of the
condition in Section 3.2(a) below, the Trustee shall thereupon resubmit the
Payment Notice and Disbursement Request with appropriate changes.
3.2 Conditions Precedent to Disbursement. The Pledge
Agent's payment of any disbursement shall be made only if: (a) the Trustee
shall have submitted, in accordance with the provisions of Section 3.1 herein,
a completed Payment Notice and Disbursement Request to the Pledge Agent
substantially in the form of Exhibit A with blanks appropriately filled in, (b)
the Company shall have complied with the requirements of Section 11.3 of the
Indenture, and (c) the Pledge 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
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payable (in which event the Pledge Agent shall apply all Available Funds as
required by Section 6(b) (iii)).
3.3 Disbursements to Company. If (i) a portion of the
Notes has been retired by the Company and submitted to the Trustee for
cancellation or the Company has deposited with the Trustee from funds otherwise
available to the Company cash sufficient to pay interest scheduled to be paid
on an Interest Payment Date, and as a result of such retirement or deposit, or
(ii) as a result of overfunding of the Pledge Account, interest or dividends
earned on Collateral, or realization of proceeds thereof in accordance with the
terms hereof, the funds or Pledged Securities held in the Pledge Account exceed
the amount sufficient, in the opinion of a nationally recognized firm of
independent public accountants selected by the Company, to provide for payment
in full of the first two scheduled interest payments due on the Notes (or, in
the event an interest payment or interest payments have been made, an amount
sufficient to provide for payment in full of any interest payments remaining,
up to and including the second scheduled interest payment), if no Default or
Event of Default is then continuing, upon the written request of the Company to
the Pledge Agent and the Trustee, any such excess amount of Collateral shall be
paid to the Company upon compliance with the release of collateral provisions
of the TIA and upon receipt by the Pledge Agent of a notice relating thereto
from the Trustee.
4. PLEDGE AGENT.
The Pledge Agent's responsibility and liability under this
Agreement shall be limited as follows: (i) the Pledge Agent does not
represent, warrant or guaranty to the holders of the Notes from time to time
the performance of the Company; (ii) the Pledge Agent shall have no
responsibility to the Company or the holders of the Notes or the Trustee from
time to time as a consequence of performance or non-performance by the Pledge
Agent hereunder, except for any gross negligence or willful misconduct of the
Pledge Agent; (iii) the Company shall remain solely responsible for all aspects
of the Company's business and conduct; and (iv) the Pledge Agent is not
obligated to supervise, inspect or inform the Company or any third party of any
matter referred to above.
No implied covenants or obligations shall be inferred from
this Agreement against the Pledge Agent, nor shall the Pledge Agent be bound by
the provisions of any agreement beyond the specific terms hereof. Specifically
and without limiting the foregoing, the Pledge 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 Government
Securities 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 Pledge 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
Company or the Trustee in compliance with the provisions of this Agreement
without being required to determine the authenticity or the correctness of any
fact stated therein or
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the propriety or validity of service thereof. The Pledge 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.
At any time the Pledge Agent may request in writing an
instruction in writing from the Company, and may at its own option include in
such request the course of action it proposes to take and the date on which it
proposes to act, regarding any matter arising in connection with its duties and
obligations hereunder; provided, however, that the Pledge Agent shall state in
such request that it believes in good faith that such proposed course of action
is consistent with another identified provision of this Agreement. The Pledge
Agent shall not be liable to the Company for acting without the Company's
consent in accordance with such a proposal on or after the date specified
therein if (i) the specified date is at least two (2) Business Days after the
Company receives the Pledge Agent's request for instructions and its proposed
course of action, and (ii) prior to so acting, the Pledge Agent has not
received the written instructions requested from the Company.
The Pledge Agent may act pursuant to the written advice of
counsel chosen by it with respect to any matter relating to this Agreement and
(subject to clause (ii) of the first paragraph of this Section 4) shall not be
liable for any action taken or omitted in accordance with such advice.
The Pledge 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 Pledge
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 Pledge Agent shall
not be or become liable for its failure or refusal to comply with conflicting
claims, demands or instructions. The Pledge 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 Pledge Agent, or the Pledge Agent shall have received
security or an indemnity satisfactory to the Pledge Agent sufficient to save
the Pledge Agent harmless from and against any and all loss, liability or
expense which the Pledge Agent may incur by reason of its acting. The Pledge
Agent may in addition elect in its sole option to commence an interpleader
action or seek other judicial relief or orders as the Pledge Agent may deem
necessary.
No provision of this Agreement shall require the Pledge 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 Company shall indemnify, hold
harmless and defend the Pledge 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,
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investigative fees and costs, legal fees, and claims for damages, arising from
the Pledge Agent's performance or non- performance, or in connection with its
acceptance or appointment as Pledge Agent, under this Agreement, except to the
extent that such liability, expense or claim is solely and directly
attributable to the negligence or willful misconduct of any of the foregoing
persons. The provisions of this Section 5 shall survive any termination,
satisfaction or discharge of this Agreement as well as the resignation or
removal of the Pledge Agent.
6. GRANT OF SECURITY INTERESTS; INSTRUCTIONS TO PLEDGE
AGENT.
(a) The Company hereby irrevocably grants a first
priority security interest in and lien on, and pledges, assigns, and sets over
to the Trustee for the benefit of the Beneficiaries, all of the Company's
right, title and interest in the Pledge Account, and all property now or
hereafter placed or deposited in, or delivered to the Pledge Agent for
placement or deposit in, the Pledge Account, including, without limitation, all
funds held therein, all Government Securities held by (or otherwise maintained
in the name of) the Pledge Agent pursuant to Section 2, and all proceeds
thereof as well as all rights of the Company under this Agreement
(collectively, the "Collateral"), in order to secure the due and punctual
payment of the principal of, premium, and interest on the Notes when and as the
same shall be due and payable on each Interest Payment Date, at maturity or by
acceleration, and interest on the overdue principal of and interest (to the
extent permitted by law), if any, on the Notes and the payment and performance
of all other obligations of the Company to the Holders of the Notes or the
Trustee under the Indenture and this Agreement with respect to the Notes,
according to the terms hereunder or thereunder. The Pledge Agent hereby
acknowledges the Trustee's security interest and lien as set forth above. The
Company shall take all actions necessary on its part to insure the continuance
of a first priority security interest in the Collateral in favor of the Trustee
in order to secure all such obligations and indebtedness.
(b) The Company and the Trustee hereby irrevocably
instruct the Pledge Agent to, and the Pledge Agent shall: (i) (A) maintain
sole dominion and control over funds and Government Securities in the Pledge
Account for the benefit of the Trustee to the extent specifically required
herein, (B) maintain, or cause its agent within the State of New York to
maintain, possession of all certificated Government Securities purchased
hereunder that are physically possessed by the Pledge 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 Company hereby agreeing
that in the event any certificated Government Securities are in the possession
of the Company or a third party, the Company shall use its best efforts to
deliver all such certificates to the Pledge Agent), (C) take all steps
specified by the Company pursuant to Section 6 to cause the Trustee to enjoy a
continuous perfected first priority security interest under any applicable
Federal and State of New York law in all Government Securities 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 Pledge Agent of any nature now or hereafter existing in
favor of anyone other
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than the Trustee; (ii) promptly notify the Trustee if the Pledge Agent receives
written notice that any Person other than the Trustee has a Lien or security
interest upon any portion of the Collateral; and (iii) in addition to
disbursing amounts pledged pursuant to any Payment Notice and Disbursement
Requests given to it by the Trustee pursuant to Section 3, upon receipt of
written notice from 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, after following, if it so chooses, the
procedures set forth in the fourth paragraph of Section 4, disburse all funds
held in the Pledge Account to the Trustee and transfer title to all Government
Securities held by the Pledge Agent hereunder to the Trustee. The Lien and
security interest provided for by this Section 6 shall automatically terminate
and cease as to, and shall not extend or apply to, and the Trustee shall have
no security interest in or Lien on, any funds disbursed by the Pledge Agent to
the Company pursuant to this Agreement to the extent not inconsistent with the
terms hereof. Notwithstanding any other provision contained in this Agreement,
the Pledge Agent shall act solely as the Trustee's agent in connection with its
duties under this Agreement. The Pledge Agent shall not have any right to
receive compensation from the Trustee and shall have no authority to obligate
the Trustee or to compromise or pledge its security interest hereunder.
Accordingly, the Pledge Agent is hereby directed to cooperate with the Trustee
in the exercise of its rights in the Collateral provided for herein.
(c) Any money and Government Securities collected by the
Trustee pursuant to Section 6(b) (iii) shall be applied as provided in Section
6.10 of the Indenture.
(d) Upon demand, the Company will execute and deliver to
the Trustee such instruments and documents as the Trustee may deem necessary or
advisable to confirm or perfect 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 Company hereby appoints the Trustee as its
attorney-in-fact with full power of substitution to do any act which the
Company is obligated hereto to do, and the Trustee may exercise such rights as
the Company might exercise with respect to the Collateral and take any action
in the Company's name to protect the Trustee's 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 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 Company 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 offices or
elsewhere, for cash, on credit or for future delivery, and upon such other
terms as the Trustee may deem commercially reasonable. The Company
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 Company agrees that, to the extent notice of sale shall be required by law,
at least 10 days notice to the Company of
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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. Upon the earliest to occur of (i) the
date upon which the balance of Available Funds shall have been reduced to zero,
(ii) if no Default or Event of Default exists, the date upon which the Company
shall have paid in full in accordance with the terms of the Indenture the first
two scheduled interest payments due on the Notes, (iii) the payment in full of
all obligations of the Company under the Indenture and the Notes, (iv) Legal
Defeasance under Article 8 of the Indenture, (v) Covenant Defeasance under
Article 8 of the Indenture, and (vi) the agreement of the parties hereto to
terminate this Agreement (in accordance with the terms hereof and not in
violation of the Indenture; provided, that the Trustee may not agree to
terminate unless it has received the consent of 100% of the holders of all of
the Notes outstanding), then the Trustee shall at the written request of the
Company, release the Liens pursuant to the Indenture and this Agreement upon
the Company's compliance with the provisions of the TIA pertaining to release
of collateral and terminate this Agreement; provided, however, that the
obligations of the Company under Section 2.3 and Section 5 (and any existing
claims thereunder) shall survive termination of this Agreement and any
resignation of the Pledge Agent.
8. MISCELLANEOUS.
8.1 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.
8.2 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.
8.3 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.
8.4 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 shall be entitled to the
benefits hereof and to enforce this Agreement, subject to Article 6 of the
Indenture.
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8.5 Time. Time is of the essence with respect to each
provision of this Agreement.
8.6 Entire Agreement; Amendments. This Agreement and the
Indenture 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 9 of the Indenture and further by a
writing signed by a duly authorized representative of each party hereto.
8.7 Notices. All notices and other communications
required or permitted to be given or made under this Agreement shall be in
writing and shall be deemed to have been duly given and received when actually
received, including: (a) on the day of hand delivery; (b) three business days
following the day sent, when sent by United States certified mail, postage and
certification fee prepaid, return receipt requested, addressed as set forth
below; (c) when transmitted by telecopy with verbal confirmation of receipt by
the telecopy operator to the telecopy number set forth below; or (d) one
business day following the day timely delivered to a next-day air courier
addressed as set forth below:
To Pledge Agent:
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--------------------------------------------
--------------------------------------------
Telephone:
------------------------------
Telecopy:
------------------------------
Attention: Corporate Trust Department
To Trustee:
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Telephone:
------------------------------
Telecopy:
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Attention: Corporate Trust Department
To the Company:
First Wave Marine, Inc.
0000 X. Xxxxxxxx Xxxxxx Xxxx.
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Suite 603
Xxxxx Xxxxx, Xxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Chief Financial Officer
or at such other address as the specified entity most recently may have
designated in writing in accordance with this Section.
8.8 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.
8.9 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.
8.10 Choice of Law. THE CONSTRUCTION AND ENFORCEABILITY
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 LAWS. THE COMPANY HEREBY SUBMITS TO THE
PERSONAL JURISDICTION OF ANY COMPETENT COURT OF THE STATE OF NEW YORK, OR A
UNITED STATES FEDERAL COURT SITTING IN NEW YORK CITY.
8.11 Representations and Warranties.
(a) The Company 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 Company. The
execution, delivery and performance of this Agreement by the Company does not
violate any applicable law or regulation to which the Company is subject and
does not require the consent of any governmental or other regulatory body to
which the Company is subject, except for such consents and approvals as have
been obtained and are in full force and effect.
(b) Each of the Pledge 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 of the Pledge Agent and the Trustee, respectively.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have executed and delivered
this Pledge Agreement as of the day first above written.
PLEDGE AGENT: BANK ONE, N.A., as Pledge Agent
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
TRUSTEE: BANK ONE, N.A., as Trustee
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
COMPANY: FIRST WAVE MARINE, INC.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
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EXHIBIT A
Form of Payment Notice and Disbursement Request
[Letterhead of the Trustee]
[Date]
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---------------------------------
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Attention: Corporate Trust Department
Re: Disbursement Request No._________________
[indicate whether revised]
Ladies and Gentlemen:
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We refer to the Pledge and Security Agreement, dated as of
_____________, 1998 by and among you (the "Pledge Agent"), the undersigned as
Trustee, and First Wave Marine, Inc., a Delaware corporation (the "Company")
(as amended and supplemented to the date hereof, the "Pledge Agreement").
Capitalized terms used herein shall have the meaning given in the Pledge
Agreement unless otherwise defined herein.
This letter constitutes a Payment Notice and Disbursement Request
under the Pledge Agreement.
[CHOOSE ONE OF THE FOLLOWING, AS APPLICABLE:]
[The undersigned hereby notifies you that a scheduled interest payment
in the amount of $___________ is due and payable on _____________, ____ and the
Company has not deposited with the Trustee from funds otherwise available to
the Company funds sufficient to pay such interest payment. Accordingly, the
undersigned requests a disbursement of funds contained in the Pledge Account in
such amount to the Trustee.]
[The undersigned (i) hereby notifies you that [CHOOSE ONE:]
[Notes equaling $_____________ in aggregate principal amount
have been retired]
[The Company deposited with the Trustee from funds otherwise
available to the Company funds sufficient to pay interest that
was due on a prior Interest Payment Date]
[as a result of interest or dividends earned on Collateral, or
realization of proceeds thereof in accordance with the terms
of the Pledge Agreement, excess Collateral exists]
and (ii) authorizes you to release $____________ of funds in the
Pledge Account to the Company (to an account designated by the Company
in writing), which amount represents the amount permitted to be
released in accordance with Section 3.3 of the Pledge Agreement.]
[The undersigned hereby notifies you that there has been an
acceleration of the maturity of the Notes. Accordingly, you are hereby
requested to disburse all remaining funds contained in the Pledge Account to
the Trustee such that the balance in the Pledge Account is reduced to zero.]
In connection with the requested disbursement, the undersigned hereby
notifies you that:
1. [The Notes have not, as a result of an Event of
Default, been accelerated and become due and payable.]
2. All prior disbursements from the Pledge Account have
been Applied.
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3. [add wire instructions]
The Pledge Agent is entitled to rely on the foregoing in disbursing
funds relating to this Payment Notice and Disbursement Request.
BANK ONE, N.A., as Trustee
By:
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Name:
-----------------------------------
Title:
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