Exhibit 4.3
COLLATERAL ACCOUNT AGREEMENT
COLLATERAL
ACCOUNT AGREEMENT, dated as of April 4, 2008, made by SUPERIOR
OFFSHORE INTERNATIONAL, INC., a Delaware corporation (the “
Pledgor ”), in favor of JPMORGAN CHASE BANK, N.A., as
Administrative Agent (in such capacity, the “the
Administrative Agent ”) and as Securities Intermediary
(in such capacity, the “ Securities Intermediary
”) for the Secured Parties (as hereinafter defined).
Preliminary Statement
As
security for those certain letters of credit listed on
Schedule I hereto (such listed letters of credit, the “
L/C Agreement ”), the Pledgor has agreed to enter into
this Agreement for the benefit of the Administrative Agent, the
issuer of such letters of credit and their respective successors
and assigns (each individually, a “ Secured Party
”, collectively, the “ Secured Parties
”).
In
addition, Secured Parties will offer certain other services
(commercial credit cards and stored value cards (the “
Cards ”)) in accordance with agreements in form and
substance substantially identical to the ones attached as
Exhibit A (the “ Services Agreements ”).
Cash Collateral deposited into the Collateral Account will also be
used to secure the obligations of Pledgor to the Second
Parties.
1.
Defined Terms . As used herein, the following terms shall
have the following meanings:
“
Agreement ”: this Collateral Account Agreement, as the
same may be amended, supplemented or otherwise modified from time
to time.
“
Cash Collateral ”: the collective reference to:
(a) all cash, instruments,
securities, other financial assets and funds deposited from time to
time in the Collateral Account;
(b) all investments of funds in the
Collateral Account and all instruments, securities and other
financial assets evidencing such investments;
(c) all interest, dividends, cash,
instruments, securities and other financial assets and other
property received in respect of, or as proceeds of, or in
substitution or exchange for, any of the foregoing; and
(d) any security entitlement to any
of the foregoing.
“
Collateral Account ”: account
no.
established at the office of JPMorgan Chase Bank, N.A. at 201 St.
Charles Avenue, 28th Floor, New Orleans LA 70170, Attention: Carol
DiVita for the Administrative Agent as entitlement holder thereto
designated “Superior Offshore International, Inc. Collateral
Account” with such abbreviations as may be required to comply
with the Securities Intermediary’s operating systems.
“
Collateral ”: the collective reference to the Cash
Collateral and the Collateral Account.
Collateral Account Agreement
“
Collateral Account Termination Date ”: the date of
termination of each L/C Agreement and of the final and irrevocable
termination of all the Secured Parties’ obligations to make
any payments thereunder or under the letters of credit issued
thereunder and the termination of all Cards and the Secured
Parties’ obligations to make any payments or reimbursements
thereunder.
“
Moody’s ”: Moody’s Investors Service,
Inc.
“
Permitted Investments ”: (i) investments in
certificates of deposit and time deposits maturing before the
Collateral Account Termination Date issued or guaranteed by or
placed with, and money market deposit accounts issued or offered
by, the domestic office of the Administrative Agent,
(ii) commercial paper rated, at the time of acquisition, at
least “A-1” or the equivalent thereof by S&P or
“P-1” or the equivalent thereof by Moody’s in
either case maturing within twelve months after the date of
acquisition and (iii) other investments approved by the
Administrative Agent.
“
Secured Obligations ”: the collective references to
all obligations and liabilities of the Pledgor which may arise
under or in connection with this Agreement and the Underlying
Agreements.
“
S&P ”: Standard & Poor’s Ratings
Services, a division of The McGraw Hill Companies, Inc.
“
UCC ”: the Uniform Commercial Code in effect in the
State of Texas or any other applicable jurisdiction from time to
time.
“
Underlying Agreements ”: the collective reference to
the L/C Agreement and the Services Agreements.
2.
Grant of Security Interest . As collateral security for the
prompt and complete payment and performance when due (whether at
the stated maturity, by acceleration or otherwise) of the Secured
Obligations, the Pledgor hereby grants to the Administrative Agent,
for the benefit of the Collateral Agent and for the ratable benefit
of the Secured Parties, a security interest in the
Collateral.
3.
Establishment and Maintenance of Collateral Account .
(a) The
Collateral Account shall be a “Securities Account” as
such term is defined in Section 8.501(a) of the UCC. The Securities
Intermediary shall, subject to the terms of this Agreement, treat
the Administrative Agent as entitled to exercise the rights that
comprise any financial asset credited to the Collateral Account.
All securities or other property underlying any financial assets
credited to the Collateral Account shall be registered in the name
of the Securities Intermediary (or its nominee), endorsed to the
Securities Intermediary (or its nominee) or in blank or credited to
another securities account maintained in the name of the Securities
Intermediary and in no case will any financial asset credited to
the Collateral Account be registered in the name of the Pledgor,
payable to the order of the Pledgor or specially indorsed to the
Pledgor except to the extent the foregoing have been specially
endorsed to the Securities Intermediary (or its nominee) or in
blank.
(b) The
Collateral Account shall be maintained until the Collateral Account
Termination Date.
(c) The
Collateral shall be subject to the exclusive dominion and control
of the Administrative Agent, which shall hold the Collateral and
administer the Collateral Account subject to
Collateral Account Agreement
2
the
terms and conditions of this Agreement. The Pledgor shall have no
right of withdrawal from the Collateral Account, except as
expressly provided herein.
4. “
Financial Assets” Election . The Securities
Intermediary hereby agrees that each item of property (whether
investment property, financial asset, security, instrument or cash)
credited to the Collateral Account shall be treated as a
“financial asset” within the meaning of Section
8.102(a)(9) of the UCC.
5.
Deposit of Funds . On the Closing Date, the Pledgor shall
deposit immediately available funds in the Collateral Account so
that the total amount deposited in the Collateral Account as of the
Closing Date is not less than an amount equal to (a) $12,606,508.52
to secure the letters of credit outstanding on the date hereof (as
listed on Schedule I hereto) plus (b) $150,000.00 to
secure the Cards issued on or as of the date hereof.
6.
Representations and Warranties of the Pledgor . The Pledgor
represents and warrants to the Administrative Agent that:
(a) The
Pledgor has the power and authority and the legal right to execute
and deliver, to perform its obligations under, and to grant the
security interest in the Collateral pursuant to, this Agreement and
has taken all necessary action to authorize its execution, delivery
and performance of, and grant of the security interest in the
Collateral pursuant to, this Agreement.
(b) This
Agreement constitutes a legal, valid and binding obligation of the
Pledgor enforceable against the Pledgor in accordance with its
terms and creates in favor of the Administrative Agent a perfected,
first priority security interest in the Collateral, enforceable in
accordance with its terms, except in each case as affected by
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting
creditors’ rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
7.
Covenants of the Pledgor. The Pledgor covenants and agrees
with the Administrative Agent that:
(a) The
Pledgor will not sell, assign, transfer, exchange, or otherwise
dispose of, or grant any option with respect to, the Collateral, or
create, incur or permit to exist any Lien or option in favor of, or
any claim of any Person with respect to, any of the Collateral, or
any interest therein, except for the security interest created by
this Agreement.
(b) The
Pledgor will maintain the security interest created by this
Agreement as a first priority, perfected security interest, and
defend the right, title and interest of the Administrative Agent
and the Secured Parties in and to the Collateral against the claims
and demands of all Persons whomsoever. At any time and from time to
time, upon the request of the Administrative Agent, and at the sole
expense of the Pledgor, the Pledgor will promptly and duly execute
and deliver such further instruments and documents and take such
further actions as the Administrative Agent reasonably may request
for the purposes of obtaining or preserving the full benefits of
this Agreement and of the rights and powers herein granted,
including, without limitation, the filing of financing statements
under the UCC.
Collateral Account Agreement
3
8.
Investment of Cash Collateral.
(a) Subject
to the provisions of Section 8(b), collected funds on deposit
in the Collateral Account shall be invested by the Securities
Intermediary from time to time in Permitted Investments; provided,
however, that so long as no default hereunder and/or under an
Underlying Agreement shall have occurred and be continuing, the
Securities Intermediary shall, if and to the extent that the
Pledgor so directs, make such investments in Permitted Investments
at the direction of the Pledgor. All investments shall be made in
the name of the Securities Intermediary or a nominee of the
Securities Intermediary and in a manner, determined by the
Administrative Agent in its sole discretion, that preserves the
Administrative Agent’s perfected, first priority security
interest on behalf of the Secured Parties in such
investments.
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