deepdown_8kex10-2.htm


    
      
        
          

        
Exhibit 10.2

      WAIVER
AGREEMENT

      


      THIS
WAIVER AGREEMENT (this “Agreement”)
is entered into as of April 28, 2010, between DEEP DOWN, INC., a Nevada
corporation (“Borrower”),
and WHITNEY NATIONAL BANK, a national banking association (the “Lender”).  Capitalized
terms used but not defined in this Waiver have the meanings given them in the
Credit Agreement (defined below).

       

      RECITALS

       

      A.           Borrower
and Lender entered into that certain Credit Agreement dated as of November 11,
2008 (as amended by the First Amendment to Credit Agreement dated December 18,
2008, the Second Amendment to Credit Agreement dated February 13, 2009, the
Third Amendment to Credit Agreement dated May 29, 2009, and as further amended,
restated, or supplemented, the “Existing
Credit
Agreement”).

       

      B.           Borrower
has informed Lender of circumstances that, absent the waiver provided under this
Agreement, would constitute the basis for a Default under the Credit Agreement
arising pursuant to Section
9.4(b) thereof.

       

      NOW
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are acknowledged, the undersigned hereby agree as follows:

       

      1.           Waiver.  Subject
to the conditions set out in this Agreement, Lender (a) waives any violation of
Section
9.4(b)of the Credit Agreement, or any Default arising thereunder,
resulting solely from executing the draft stock purchase agreement by and among
Deep Down, Inc., Cuming Corporation and The Selling Stockholders, herein
referred to as (the “Stock Purchase Agreement”), which is subject to financing
and (b) agrees not to exercise any of the rights or remedies available to it
under the Loan Documents as a result of the violation or Default described in
clause (B)
above.

       

      2.           Conditions.  This
Agreement shall be effective once each of the following have been delivered to
Lender:

       

      (a)           this
Agreement executed by Borrower and Lender; and

       

      (b)           such
other documents as Lender may reasonably request.

      


      3.           Miscellaneous.

       

      (a)           Headings.  The
headings and captions used in this Agreement are for convenience only and will
not be deemed to limit, amplify or modify the terms of this Agreement, the
Credit Agreement, or the other Loan Documents.

       

      (b)           Costs, Expenses and
Attorneys’ Fees.  Borrower agrees to pay or reimburse Lender on
demand for all its reasonable out-of-pocket costs and expenses incurred in
connection with the preparation, negotiation, and execution of this Agreement,
including, without limitation, the reasonable fees and disbursements of Lender’s
counsel.

       

      (c)           Successors and
Assigns.  This Agreement shall be binding upon and inure to the
benefit of each of the undersigned and their respective successors and permitted
assigns.

       

      
        
           

        

        
           

          
            

          

        

        
           

        

      

       

      (d)           Multiple
Counterparts.  This Agreement may be executed in any number of
counterparts with the same effect as if all signatories had signed the same
document.  All counterparts must be construed together to constitute
one and the same instrument.  This Agreement may be transmitted and
signed by facsimile or portable document format (PDF).  The
effectiveness of any such documents and signatures shall, subject to applicable
law, have the same force and effect as manually-signed originals and shall be
binding on Borrower and Lender.  Lender may also require that any such
documents and signatures be confirmed by a manually-signed original; provided that the failure to
request or deliver the same shall not limit the effectiveness of any facsimile
or PDF document or signature.

       

      (e)           Governing
Law.  This Waiver must be construed, and its performance
enforced, under Texas law.

       

      (f)           Entirety.  This Waiver
Represents the Final Agreement Between Borrower and Lender relating to the
subject matter of this waiver and May Not Be Contradicted by Evidence of Prior,
Contemporaneous, or Subsequent Oral Agreements by the Parties.  There
Are No Unwritten Oral Agreements among the Parties.

       

      


      [Signatures are on the following
page.]

       

      
        
           

        

        
           

          
            

          

        

        
           

        

      

       

      The
Agreement is executed as of the date set out in the preamble to this
Agreement.

       

      
      

       

      
        	 	      
                BORROWER:

                


                DEEP
      DOWN, INC.,

                a
      Nevada corporation

              
	 	 	 	 
	 	 	 	 
	 	By:	/s/ 	
                Eugene L.
      Butler

              
	 	 	 	
                
                  
                    Eugene L.
      Butler

                    Chief Financial Officer

                  

                

              
	 	 	 	 
	 	 	 	 
	 	      
                LENDER:

                


                WHITNEY
      NATIONAL BANK,

                a
      national banking association

              
	 	 	 	 
	 	 	 	 
	 	By:	/s/	
                Paul W.
      Cole

              
	 	 	 	      
                
                  Paul
      W. Cole

                  Vice
      President

                

              


      

       

       

      
        


      


                 

       

       

      


      


      
        


      


             

      
        

        Signature
Page to Waiver Agreement