1
EXHIBIT 10.1
PLEDGE AND SECURITY AGREEMENT
This PLEDGE AND SECURITY AGREEMENT, dated as of February 2,
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 11% 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 $9,900,000.
2
"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 000 Xxxx Xxxxx, Xxxxxxxx, Xxxx
00000-0000. 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
2
3
written instructions from time to time to the Pledge Agent; provided,
however, 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 August 1, 1998 and through and including the Interest
Payment Date on February 1, 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.
3
4
(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
February 1, 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
4
5
Securities or this Agreement to a 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)
5
6
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 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.
6
7
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 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.
7
8
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,
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
8
9
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 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
9
10
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 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.
10
11
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.
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:
Bank One, N.A.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000-0000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Corporate Trust Department
11
12
To Trustee:
Bank One, N.A.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000-0000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Corporate Trust Department
To the Company:
First Wave Marine, Inc.
0000 X. Xxxxxxxx Xxxxxx Xxxx.
Xxxxx 000
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.
12
13
(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]
13
14
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: /s/ XXX X. XXXXXXX
-------------------------------------------
Name: Xxx X. Xxxxxxx
----------------------------------------
Title: Authorized Signer
----------------------------------------
TRUSTEE: BANK ONE, N.A., as Trustee
By: /s/ XXX X. XXXXXXX
-------------------------------------------
Name: Xxx X. Xxxxxxx
----------------------------------------
Title: Authorized Signer
----------------------------------------
COMPANY: FIRST WAVE MARINE, INC.
By: /s/ XXXXX X. XXXXXX
-------------------------------------------
Xxxxx X. Xxxxxx
Executive Vice President, Chief Financial
Officer and Secretary
14
15
EXHIBIT A
Form of Payment Notice and Disbursement Request
[Letterhead of the Trustee]
[Date]
----------------------------------------
----------------------------------------
----------------------------------------
Attention: Corporate Trust Department
Re: Disbursement Request No._____________________
[indicate whether revised]
Ladies and Gentlemen:
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]
A-1
16
[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.
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:
-------------------------------------------
Name:
----------------------------------------
Title:
----------------------------------------
A-2
