Exhibit 10.10
SECURITIES INTERMEDIARY AND ACCOUNT AGREEMENT
This Securities Intermediary and Account Agreement (the "Agreement"),
dated as of April 29, 1998, by and among U.S. Bank Trust National
Association, in the capacity of Securities Intermediary ("Securities
Intermediary"), U.S. Bank Trust National Association, in the capacity of
Trustee ("Trustee") for the benefit of the holders of the Notes (as defined
below) under the Indenture (as defined below) and as Collateral Agent (the
"Collateral Agent") for the benefit of the holders of the Notes under the
Security Agreement (as defined below), and Xxxxxx Offshore LLC, a Delaware
limited liability company, and Xxxxxx Offshore Finance Corp., a Delaware
corporation (together, the "Entitlement Holders").
R E C I T A L S
A. Pursuant to that Indenture dated as of April 29, 1998, by and among
the Entitlement Holders, as issuers (the "Issuers"), and the Trustee and
Collateral Agent (the "Indenture"), the Issuers have issued their 10% Senior
Notes due 2008 (the "Notes").
B. As security for their obligations to repay the Notes, the Issuers
have executed and delivered to the Collateral Agent, in addition to the
Indenture, the Escrow Security Agreement, dated as of April 29, 1998 (the
"Security Agreement"), in which the Issuers grant to the Collateral Agent a
security interest in the Collateral (as defined in the Security Agreement), a
portion of which will be held in the Escrow Accounts (as defined below).
C. The parties have entered into that certain Escrow Agreement, dated as
of April 29, 1998 (the "Escrow Agreement"), to set forth the terms and
conditions under which (i) the Securities Intermediary, as Escrow Agent,
shall establish an Interest Escrow Account and a Construction Escrow Account
(together, the "Escrow Accounts") to receive, hold, invest and disburse
certain funds and other property held therein and (ii) the Collateral Agent
shall have control of such funds and other property to perfect its security
interest therein pursuant to the Security Agreement.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Defined Terms. Capitalized terms used herein but not defined herein
shall have the meaning given in the Escrow Agreement or the Security
Agreement.
2. Securities Accounts. The Escrow Accounts are "securities accounts"
within the meaning of Article 8 of the Minnesota Uniform Commercial Code. All
assets now or hereafter held
in either of the Escrow Accounts are and will be "financial assets" within the
meaning of Article 8 of the Minnesota Uniform Commercial Code.
3. Securities Intermediary. In performing its duties and functions under
the Escrow Agreement and the Securities Agreement as the Escrow Agent, the
Securities Intermediary is acting in the capacity of a "securities
intermediary" within the meaning of Article 8 of the Minnesota Uniform
Commercial Code.
4. Entitlement Holders. For all purposes relating to the interests of
the Entitlement Holders with respect to all funds and other property held
under the Escrow Agreement in the Escrow Accounts, the Entitlement Holders
shall have and hold "securities entitlements" within the meaning of Article 8
of the Minnesota Uniform Commercial Code.
5. Securities Intermediaries' Jurisdiction. This Agreement and the
Securities Intermediary's performance of its duties and functions as a
securities intermediary, including, without limitation, the perfection and
priority of the securities entitlements created under the Escrow Agreement
and the perfection and priority of the security interest granted under the
Security Agreement, and any adverse claims asserted by any person with
respect to the funds and other property held in the Escrow Accounts, shall be
governed by the law of the State of Minnesota, which shall be the "securities
intermediaries'" jurisdiction for purposes of such matters under the Escrow
Agreement and the Security Agreement.
6. Other Agreements Controlling. Subject only to the specific provisions
of this Agreement expressly applicable to the matters addressed in the Escrow
Agreement and the Security Agreement (which for only such matters the
provision herein shall supersede Section 8(g) of the Escrow Agreement), the
respective rights, interests, functions and duties of the parties hereto with
respect to the creation and administration of the Escrow Accounts and the
receipt, custody, investment disbursement and disposition of funds and other
property held therein and the security interest granted herein, shall be
governed by terms and conditions set forth in the Security Agreement and the
Escrow Agreement.
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IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first above written:
SECURITIES INTERMEDIARY:
U.S. BANK TRUST NATIONAL
ASSOCIATION
By: /s/ Xxxxxxx X. Prokosel
---------------------------------
Name: Xxxxxxx X. Prokosol
Title: Assistant Vice President
TRUSTEE AND COLLATERAL AGENT:
U.S. BANK TRUST NATIONAL
ASSOCIATION
By: /s/ Xxxxxxx X. Prokosel
---------------------------------
Name: Xxxxxxx X. Prokosul
Title: Assistant Vice President
ENTITLEMENT HOLDERS:
XXXXXX OFFSHORE LLC
By: /s/ Xxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Senior Vice President, Chief
Financial Officer and Secretary
XXXXXX OFFSHORE FINANCE CORP.
By: /s/ Xxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Senior Vice President, Chief
Financial Officer and Secretary
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