Exhibit 10.27.7
PLEDGE
AGREEMENT
This PLEDGE AGREEMENT (this
“ Agreement ”), is made effective June 30,
2009, by and between PRIME OFFSHORE L.L.C. , a Delaware
limited liability company (“ Pledgor ”) and
GUARANTY BANK, FSB , a federal savings bank, as Agent for
the lenders party to that certain Amended and Restated Credit
Agreement dated effective March 31, 2008, as amended on the
effective date hereof (as amended, supplemented, restated or
otherwise modified from time to time, the “ Credit
Agreement ”), by and among Pledgor, such lenders (the
“ Lenders ”) and Guaranty Bank, FSB, as
administrative agent for the Lenders (in such capacity, “
Secured Party ”).
R E C I T A
L S:
A. Pledgor, the Lenders and Secured
Party are parties to the Credit Agreement.
B. Pledgor owns 100% of the general
partner interest in FWOE Partners L.P., a Delaware limited
partnership (the “ Partnership ”).
C. Secured Party and the Lenders
have conditioned extensions of credit to Pledgor under the Credit
Agreement upon, among other things, the execution and delivery of
this Agreement by 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, and for the benefit of,
Secured Party 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. Obligations
Secured . 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, without
limitation, 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 Pledgor,
would accrue on such obligations), or payments of fees, expenses or
otherwise, owing by Pledgor under the Credit Agreement and
(b) all obligations, indebtedness and liabilities of Pledgor
now or hereafter existing under this Agreement or any other
security document securing payment of such obligations (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 Subordinated
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
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the Assignment of Partnership Interest, and if
the assignee is not 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 partners shall be entitled to rely
conclusively on such Subordinated 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, Secured
Party shall not have any obligation or liability under the
Partnership Agreement by reason of this Agreement, nor shall
Secured Party 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 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.
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(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.
(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 9821 Katy Freeway, Suite 1050, Houston, Texas 77024, 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.
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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 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 rights 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
