Exhibit 10.9
-------------------------------------------------------------------------------
ESCROW SECURITY AGREEMENT
Between
U.S. BANK TRUST NATIONAL ASSOCIATION
("Collateral Agent")
and
▇▇▇▇▇▇ OFFSHORE LLC
and
▇▇▇▇▇▇ OFFSHORE FINANCE CORP.
("Grantors")
April 29, 1998
-------------------------------------------------------------------------------
This ESCROW SECURITY AGREEMENT ("Agreement"), dated as of April 29,
1998, by and between U.S. BANK TRUST NATIONAL ASSOCIATION, as secured party
and as Trustee (as defined below) for the benefit of the holders of the Notes
(as defined below) under the Indenture (as defined below) (the "Collateral
Agent"), and ▇▇▇▇▇▇ OFFSHORE, LLC, a Delaware limited liability company, and
▇▇▇▇▇▇ OFFSHORE FINANCE CORP, a Delaware corporation, as grantors (together,
"Grantors").
RECITALS
A. Pursuant to that certain Indenture dated as of April 29, 1998
(the "Indenture"), by and among Grantors, their subsidiaries (the "Subsidiary
Guarantors") and U.S. Bank Trust National Association, as trustee (the
"Trustee"), Grantors have issued their 10% Senior Notes due 2008 (the
"Notes").
B. As security for their obligations to repay the Notes, Grantors
are executing and delivering to the Trustee, in addition to the Indenture,
this Agreement, in which Grantors grant to the Trustee a security interest in
the Collateral (as defined below).
C. The Indenture requires that Grantors execute and deliver this
Agreement.
AGREEMENT
In consideration of the premises and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged,
Grantors hereby agree, jointly and severally, with the Collateral Agent as
follows:
1. Definitions. Unless otherwise defined, all terms used herein
shall have the meanings given in the Indenture. The following terms shall
have the respective meanings given:
"Escrow Agreement" means the Escrow Agreement dated as of the date
hereof among U.S. Bank Trust National Association, as Escrow Agent, U.S. Bank
Trust National Association, as Trustee, and Grantors.
"Governmental Authorities" means any national, state or local
government (whether domestic or foreign), any political subdivision thereof
or any other governmental or quasi-governmental, judicial, public or
statutory instrumentality, authority, body, agency, bureau or entity, or any
arbitrator with authority to bind a party at law.
"Person" means any natural person, corporation, partnership, firm,
association, Governmental Authority, or any other entity whether acting in an
individual, fiduciary or other capacity.
2. Assignment, Pledge and Grant of Security Interest.
(a) To secure the timely payment and performance of the
Obligations (as defined below), each Grantor does hereby assign as
collateral, grant a security interest in, and pledge, to the Collateral Agent
for the benefit of the holders of the Notes, all the estate, right, title and
interest of each such Grantor, whether now owned or hereafter acquired, in,
to and under:
(i) the Interest Escrow Account (as defined in the
Indenture) and all funds and investments held or contained in the
Interest Escrow Account, including all investments of such funds.
(ii) the Construction Escrow Account (as defined in the
Indenture) and all funds and investments held or contained in the
Construction Escrow Account, including all investments of such funds.
(iii) the Escrow Agreement, as amended or modified from
time to time (the "Assigned Agreement").
(iv) the proceeds of all of the foregoing (all of the
collateral described in clauses (i), (ii) and (iii) and this clause (iv)
being herein collectively referred to as the "Collateral"), including
(A) all rights of Grantors to receive moneys due and to become due under
or pursuant to the Collateral, (B) all claims of Grantors for damages
arising out of or for breach of or default under the Assigned Agreement
or any other Collateral, (C) all rights of Grantors under the Assigned
Agreement, including any rights to perform thereunder and to compel
performance and otherwise exercise all remedies thereunder and (D) to
the extent not included in the foregoing, all proceeds receivable or
received when any and all of the foregoing Collateral is sold,
collected, exchanged or otherwise disposed of, whether voluntarily or
involuntarily.
(b) Anything herein contained to the contrary notwithstanding,
each Grantor shall remain liable under the Assigned Agreement, to perform all
of the obligations undertaken by it thereunder, all in accordance with and
pursuant to the terms and provisions thereof, and the Collateral Agent shall
have no obligation or liability under such Assigned Agreement by reason of or
arising out of this Agreement, nor shall the Collateral Agent be required or
obligated in any manner to perform or fulfill any obligations of either
Grantor thereunder or to make any payment, or to make any inquiry as to the
nature or sufficiency of any payment received by it, or present or file any
claim, or take any action to collect or enforce the payment of any amounts
which may have been assigned to it or to which it may be entitled at any time
or times.
(c) Subject to the terms of the Indenture, upon the occurrence
and during the continuance of an Event of Default, each Grantor does hereby
constitute the Collateral Agent, acting for and on behalf of the holders of
the Notes, the true and lawful attorney of such Grantor, irrevocably, with
full power (in the name of such Grantor or otherwise) to ask, require,
demand, receive, compound and give acquittance for any and all moneys and
claims for moneys due and to become due under or arising out of the Assigned
Agreement or any of the other Collateral, to elect
2
remedies thereunder, to endorse any checks or other instruments or orders in
connection therewith and to file any claims or take any action or institute
any proceedings in connection therewith which the Collateral Agent may deem
to be necessary or advisable; provided, however, that the Collateral Agent
shall give each Grantor notice of any action taken by it as such
attorney-in-fact within two (2) Business Days after taking any such action.
(d) If any default by either Grantor under the Assigned
Agreement shall occur, the Collateral Agent shall, at its option, be
permitted (but shall not be obligated) to remedy any such default by giving
written notice of such intent to such Grantor and to the other parties to the
Assigned Agreement. Any curing by the Collateral Agent of such Grantor's
default under the Assigned Agreement shall not be construed as an assumption
by the Collateral Agent of any obligations, covenants or agreements of such
Grantor under such Assigned Agreement, and the Collateral Agent shall not
incur any liability to such Grantor or any other Person as a result of any
actions undertaken by the Collateral Agent in curing or attempting to cure
any such default. This Agreement shall not be deemed to release or to affect
in any way the obligations of such Grantor under the Assigned Agreement.
3. Obligations Secured. This Agreement secures the payment and
performance of all obligations (now existing or hereafter arising) of each
Grantor owing to the holders of the Notes under the Notes and the Indenture
(such obligations being herein called the "Obligations").
4. Events of Default. The occurrence of an Event of Default under
and as defined in the Indenture, whatever the reason for such Event of
Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body,
shall constitute an Event of Default hereunder.
5. Remedies.
(a) If any Event of Default has occurred and is continuing,
the Collateral Agent may, (i) apply the Collateral to any Obligations due and
payable, (ii) proceed to protect and enforce the rights vested in it by this
Agreement, including the right to cause all revenues hereby pledged as
security and all other moneys pledged hereunder to be paid directly to it,
and to enforce its rights hereunder to such payments and all other rights
hereunder by such appropriate judicial proceedings as it shall deem most
effective to protect and enforce any of such rights, either at law or in
equity or otherwise, whether for specific enforcement of any covenant or
agreement contained in the Assigned Agreement, or in aid of the exercise of
any power therein or herein granted, or for any foreclosure hereunder and
sale under a judgment or decree in any judicial proceeding, or to enforce any
other legal or equitable right vested in it by this Agreement or by law;
(iii) cause any action at law or suit in equity or other proceeding to be
instituted and prosecuted to collect or enforce any Obligations or rights
included in the Collateral, or to foreclose or enforce any other agreement or
other instrument by or under or pursuant to which such Obligations are issued
or secured, subject in each case to the provisions and requirements thereof;
(iv) sell or otherwise dispose of any or all
3
of the Collateral or cause the Collateral to be sold or otherwise disposed of
in one or more sales or transactions, at such prices as the Collateral Agent
may deem best, and for cash or on credit or for future delivery, without
assumption of any credit risk, at any broker's board or at public or private
sale, without demand of performance or notice of intention to sell or of time
or place of sale (except such notice as is required by applicable statute,
rule or regulation and cannot be waived), it being agreed that the Collateral
Agent may be a purchaser on behalf of the holders of Notes at any such sale
and that the Collateral Agent or anyone else who may be the purchaser of any
or all of the Collateral so sold shall thereafter hold the same absolutely,
free from any claim or right of whatsoever kind, including any equity of
redemption, of either Grantor, any such demand, notice or right and equity
being hereby expressly waived and released to the extent permitted by law;
(v) incur expenses, including attorneys' fees, consultants' fees, and other
costs appropriate to the exercise of any right or power under this Agreement;
(vi) perform any obligation of either Grantor hereunder, and make payments,
purchase, contest or compromise any Lien, and pay taxes and expenses,
without, however, any obligation so to do; (vii) take possession of the
Collateral, control and manage the Collateral, collect all income from the
Collateral and apply the same to reimburse the Trustee, Collateral Agent and
the holders of Notes for any cost or expenses incurred hereunder or under the
Indenture and to the payment or performance of each Grantor's obligations
hereunder or under the Indenture, and apply the balance to the Notes as
provided in the Indenture and any remaining excess balance to whomsoever is
legally entitled thereto; (viii) secure the appointment of a receiver of the
assets of either such Grantor or any part thereof and/or the Collateral or
any party thereof; or (ix) exercise any other or additional rights or
remedies granted to a secured party under the Uniform Commercial Code. If,
pursuant to applicable law, rule or regulation prior notice of any such
action is required to be given to either such Grantor, each such Grantor
hereby acknowledges that the minimum time required by such applicable law,
rule or regulation or if no minimum is specified, ten (10) Business Days,
shall be deemed a reasonable notice period.
(b) All costs and expenses (including reasonable attorneys'
fees and expenses) incurred by the Collateral Agent in connection with any
such suit or proceeding, or in connection with the performance by the
Collateral Agent of any of such Grantor's agreements pursuant to any exercise
of its rights or remedies hereunder, including the Assigned Agreement
pursuant to the terms of this Agreement, together with interest thereon (to
the extent permitted by law) computed at a rate per annum equal to the
interest rate on the Notes from the date on which such costs or expenses are
incurred to the date of payment thereof, shall constitute additional
indebtedness secured by this Agreement and shall be paid by such Grantor to
the Collateral Agent on behalf of the holders of Notes on demand.
6. Remedies Cumulative; Delay Not Waiver.
(a) No right, power or remedy herein conferred upon or
reserved to the Collateral Agent is intended to be exclusive of any other
right, power or remedy, and every such right, power and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right,
power and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the
4
concurrent assertion or employment of any other appropriate right or remedy.
Resort to any or all security now or hereafter held by the Collateral Agent,
may be taken concurrently or successively and in one or several consolidated
or independent judicial actions or lawfully taken nonjudicial proceedings, or
both.
(b) No delay or omission of the Collateral Agent to exercise
any right or power accruing upon the occurrence and during the continuance of
any Event of Default as aforesaid shall impair any such right or power or
shall be construed to be a waiver of any such Event of Default or an
acquiescence therein; and every power and remedy given by this Agreement may
be exercised from time to time, and as often as shall be deemed expedient, by
the Collateral Agent.
7. Covenants. Each Grantor, jointly and severally, covenants as
follows:
(a) The Grantors shall not, and shall not permit any Affiliate
to, take or knowingly omit to take, any action which action or omission might
or would have the result of materially impairing the security interest with
respect to the Collateral for the benefit of the Collateral Agent, the
Trustee and the holders of the Notes, and the Grantors shall not, and shall
not permit any Affiliate to, grant to any Person other than the Collateral
Agent, for the benefit of the Collateral Agent, the Trustee and the holders
of the Notes, any interest whatsoever in any of the Collateral. Grantors
shall not, and shall not permit any Affiliate to, directly or indirectly,
sell, lease, transfer or otherwise dispose of the Collateral other than in
accordance with this Agreement.
(b) Any action or proceeding to enforce this Agreement or the
Assigned Agreement may be taken by the Collateral Agent either in such
Grantors' names or in the Collateral Agent's name, as the Collateral Agent
may deem necessary.
(c) Grantors shall not modify, amend, terminate, waive or
supplement any provision of the Assigned Agreement if any such modification,
amendment, termination, waiver or supplement would adversely affect the
interest of the Collateral Agent on behalf of the holders of the Notes in a
degree greater than the manner in which it adversely affects Grantor.
(d) Grantors shall pay, before the imposition of any fine,
penalty, interest or cost attached thereto, all taxes, assessments and other
governmental or non-governmental charges or levies now or hereafter assessed
or levied against the Collateral or upon the security interest provided for
herein (except for Liens for taxes and assessments not then delinquent or
which Grantors may, pursuant to the definition of "Permitted Liens" in the
Indenture, permit to remain unpaid or any charge being contested in good
faith for which an adequate reserve has been established), as well as pay, or
cause to be paid, all claims for labor, materials or supplies which, if
unpaid, might become a prior Lien (other than a Permitted Lien) thereon.
8. Representations and Warranties. Grantors represent and warrant,
jointly and severally, as follows:
5
(a) The Assigned Agreement in effect on the date hereof has
been duly authorized, executed and delivered by Grantors and is in full force
and effect and is binding upon and enforceable against Grantors in accordance
with its terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the general principles of equity. There
exists no default under the Assigned Agreement by Grantors, or to the best of
Grantors' knowledge, by the other parties thereto.
(b) No effective financing statement or other instrument
similar in effect covering all or any part of Grantors' interest in the
Collateral is on file in any recording office, except such as may have been
filed pursuant to this Agreement or pursuant to the documents evidencing
Permitted Liens. The provisions of this Agreement are effective to create in
favor of the Collateral Agent a valid security interest in the Collateral (to
the extent that the Grantors have rights therein) and, upon the filing of
UCC-1 Financing Statements in the filing offices identified on Schedule I in
respect of such portions of the Collateral in which a security interest may
be perfected as a result of such filing, the Collateral Agent will have a
valid and perfected security interest in the Collateral, to the extent that
the Grantor has rights therein (other than proceeds, to the extent Section
9-306 of the Uniform Commercial Code as in effect in the relevant
jurisdiction(s) is not complied with respect to such proceeds), subject to no
other Liens except Permitted Liens, and first priority except to the extent
of Permitted Liens described in the Indenture.
(c) Grantors is lawfully possessed of ownership of the
Collateral. Grantors have full power and lawful authority to grant and assign
the Collateral hereunder. Grantor will, so long as any Obligations shall be
outstanding, warrant and defend their title to the Collateral against the
claims and demands of all Persons whomsoever.
(d) Grantors have not assigned any of its rights under the
Assigned Agreement except as provided in this Agreement. Grantor will not
make any other assignment of their rights under the Assigned Agreement.
(e) All subsidiaries of Grantors are listed in Paragraph 1 of
Schedule II; all names of Grantors' predecessors-in-interest are listed in
Paragraph 2 of Schedule II; and all names under which Grantors do business
are listed in Paragraph 3 of Schedule II.
(f) Grantors' place of business, or if Grantors have more than
one place of business, Grantors' chief executive office, is set forth in
Paragraph 4 of Schedule II.
(g) Except for the filing or recording of the UCC Financing
Statements described in Section 8(b) and except as otherwise described in
Section 11, no authorization, approval, or other action by, and no notice to
or filing with, any governmental authority or regulatory body is required
either (i) for the grant by Grantors of the security interest in the
Collateral pursuant to this Agreement or for the execution, delivery or
performance of this Agreement by Grantors, or (ii) for the perfection of such
security interest or the exercise by the Collateral Agent of the rights and
remedies provided for in this Agreement.
6
(h) The execution, delivery and performance by Grantors of
this Agreement and the consummation of the transactions contemplated hereby
(including the creation of the Liens granted hereunder) will not (i) violate
Grantors' constituent organizational documents, (ii) violate any order,
judgment or decree of any Governmental Authorities binding on Grantors or any
property or assets of Grantors, (iii) violate or conflict with any law, rule,
regulation, or permit applicable to Grantors or any of its properties, (iv)
conflict with, result in a breach of or constitute (with due notice or lapse
of time or both) a default under any agreement, indenture, mortgage, deed of
trust, equipment lease, instrument or other document to which Grantors are a
party or pursuant to which any of its properties or assets are bound, (v)
result in or require the creation or imposition of any Lien upon any material
properties or assets of Grantors (other than the creation of the Liens
granted hereunder, including Permitted Liens described in the Indenture), or
(vi) require any approval or consent of Grantors' owners.
9. Further Assurances.
(a) Each Grantor agrees that from time to time, at the expense
of such Grantor, such Grantor will promptly execute and file such financing
or continuation statements, or amendments thereto, and such other
instruments, endorsements or notices, and take such other actions, as may be
reasonably necessary or as the Collateral Agent may reasonably request, in
order to perfect and preserve the assignments and security interests granted
or purported to be granted hereby.
(b) Each Grantor hereby authorizes the Collateral Agent to
file one or more financing or continuation statements, and amendments
thereto, relative to all or any part of the Collateral without the signature
of such Grantor where permitted by law. Copies of any such statement or
amendment thereto shall promptly be delivered to such Grantor.
(c) Each Grantor shall pay all filing, registration and
recording fees or refiling, re-registration and re-recording fees, and all
expenses incident to the execution and acknowledgment of this Agreement, any
assurance, and all federal, state, county and municipal stamp taxes and other
taxes, duties, imports, assessments and charges arising out of or in
connection with the execution and delivery of this Agreement, any agreement
supplemental hereto and any instruments of further assurance.
10. Place of Perfection. Each Grantor shall give the Collateral
Agent at least thirty (30) business days' notice before it changes the
location of its chief executive office, or its name, identity or
organizational form, and shall at the expense of such Grantor execute and
deliver such instruments and documents as are required to maintain the
priority and perfection of the security interest granted hereby. Each Grantor
shall not change the location of its principal place of business or chief
executive office to any location outside of the United States unless the
Collateral Agent is reasonably satisfied (based upon advice of legal counsel)
that the security interest created under this Agreement will not be adversely
affected or impaired.
7
11. Miscellaneous.
(a) 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, regardless of when and
whether received: (i) on the day of hand delivery; (ii) upon confirmation
when sent by facsimile transmission; (iii) on the next business day after the
day sent, when sent by overnight mail; or (iv) on the third business day
after the day sent, when sent by United States certified mail, postage and
certification fee prepaid, return receipt requested, addressed as follows:
To the Collateral Agent:
U.S. Bank Trust National Association
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Corporate Trust Administration
To Grantors:
▇▇▇▇▇▇ Offshore LLC
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer
▇▇▇▇▇▇ Offshore Finance Corp.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer
or at such other address as the specified entity most recently may have
designated in writing in accordance with this section to the others.
(b) Headings. The headings in this Agreement are for purposes
of reference only and shall not affect the meaning or construction of any
provision of this Agreement.
(c) Severability. The provisions of this Agreement are
severable, and if any clause or provision shall be held invalid, illegal or
unenforceable in whole or in part in any jurisdiction, then such invalidity
or unenforceability shall affect in that jurisdiction only such clause or
provision, or part thereof, and shall not in any manner affect such clause or
provision in any other jurisdiction or any other clause or provision of this
Agreement in any jurisdiction.
(d) Amendments, Waivers and Consents. Any amendment or waiver
of any provision of this Agreement and any consent to any departure by either
Grantor from any provision
8
of this Agreement shall be effective only if made or given in compliance with
all of the terms and provisions of the Indenture. The Grantors shall not
amend, modify or supplement, or permit or consent to any amendment,
modification or supplement of, this Agreement in any way that would be
adverse to the holders of the Notes.
(e) Interpretation of Agreement. Time is of the essence in
each provision of this Agreement of which time is an element.
(f) Continuing Security Interest. This Agreement shall create
a continuing security interest in the Collateral and shall (i) remain in full
force and effect until the first to occur of (x) the payment and performance
in full of the Obligations and (y) the termination of the Escrow Agreement,
(ii) be binding upon each Grantor, its successors and assigns, and (iii)
inure, together with the rights and remedies of the Collateral Agent
hereunder, to the benefit of the Collateral Agent and its successors,
transferees and assigns.
(g) Reinstatement. To the extent permitted by law, this
Agreement shall continue to be effective or be reinstated, as the case may
be, if at any time any amount received out of the proceeds of the Collateral
or otherwise prior to the termination of the Escrow Agreement by the holders
of the Notes, the Collateral Agent or the Trustee in respect of the
Obligations is rescinded or must otherwise be restored or returned by the
Collateral Agent, upon the insolvency, bankruptcy, dissolution, liquidation
or reorganization of either Grantor or upon the appointment of any receiver,
intervenor, conservator, trustee or similar official for either Grantor or
any substantial part of such Grantor's assets, or otherwise, all as though
such payments had not been made.
(h) Survival of Provisions. All representations, warranties
and covenants of each Grantor contained herein shall survive the execution
and delivery of this Agreement, and shall terminate only upon the full and
final payment and performance by Grantors of the Obligations secured hereby.
(i) Authority of the Collateral Agent. The Collateral Agent
shall have and be entitled to exercise all powers hereunder which are
specifically granted to the Collateral Agent by the terms hereof, together
with such powers as are reasonably incident thereto. The Collateral Agent may
perform any of its duties hereunder or in connection with the Collateral by
or through agents or employees and shall be entitled to retain counsel and to
act in reliance upon the advice of counsel concerning all such matters.
Neither the Collateral Agent nor any director, officer, employee, attorney or
agent of the Collateral Agent shall be liable to either Grantor for any
action taken or omitted to be taken by it or them hereunder, except for its
or their own gross negligence or willful misconduct, nor shall the Collateral
Agent be responsible for the validity, effectiveness or sufficiency of this
Agreement or of any document or security furnished pursuant hereto. The
Collateral Agent and its directors, officers, employees, attorneys and agents
shall be entitled to rely on any communication, certificate, instrument or
document reasonably believed by it or them to be genuine and correct and to
have been signed or sent by the proper person or persons. Each Grantor agrees
jointly and severally to indemnify and hold harmless the Collateral Agent
from and against
9
any and all costs, expenses (including reasonable fees, expenses and
disbursements of attorneys and paralegals (including, without duplication,
reasonable charges of inside counsel)), claims and liabilities incurred by
the Collateral Agent hereunder, unless such claim or liability shall be due
to willful misconduct or gross negligence on the part of the Collateral Agent.
(j) Release; Termination of Agreement. Subject to the
provisions of Section 11(g), this Agreement shall terminate upon the first to
occur of (x) the occurrence of both (i) the payment in full of the first two
scheduled interest payments on the Notes and (ii) the first to occur of the
following (A) the date the Construction Escrow Account has been reduced to
zero in accordance with the Escrow Agreement and (B) the Second Delivery Date
(as defined in the Escrow Agreement) and (y) the termination of the Escrow
Agreement. At such time, the Collateral Agent shall, at the request and
expense of Grantors, promptly reassign and redeliver to Grantors all of the
Collateral hereunder which has not been sold, disposed of, retained or
applied by the Collateral Agent in accordance with the terms hereof and of
the Escrow Agreement. Such reassignment and redelivery shall be without
warranty by or recourse to the Collateral Agent, except as to the absence of
any prior assignments by the Collateral Agent of its interest in the
Collateral, and shall be at the expense of Grantors.
(k) Counterparts. This Agreement may be executed in any number
of counterparts and by different parties hereto on separate counterparts,
each of which, when so executed and delivered, shall be deemed an original
but all of which shall together constitute one and the same agreement.
(l) Waivers. Each Grantor hereby irrevocably and
unconditionally:
(i) except as expressly provided in Section 5(a), waives
all rights of notice and hearing of any kind prior to the exercise by
the Collateral Agent of its rights from and after an Event of Default to
repossess the Collateral with judicial process or to replevy, attach or
levy upon the Collateral. Each Grantor waives the posting of any bond
otherwise required of the Collateral Agent in connection with any
judicial process or proceeding to obtain possession of, replevy, attach
or levy upon collateral, to enforce any judgment or other security for
the Obligations, to enforce any judgment or other court order entered in
favor of such party or to enforce by specific performance, temporary
restraining order, preliminary or permanent injunction, this Agreement;
(ii) waives the right to assert any setoff, counterclaim
or cross-claim in respect of, and all statutes of limitations which may
be relevant to, such action or proceeding;
(iii) waives diligence, demand, presentment and protest
and any notices thereof as well as notice of nonpayment; and
(iv) waives presentment and demand for payment of any of
the Obligations, protest and notice of dishonor or default with respect
to any of the Obligations.
10
(m) Governing Law. The validity, interpretation and
enforcement of this Agreement shall be governed by the laws of the State of
New York without giving effect to the conflict of law principles thereof.
11
IN WITNESS WHEREOF, Grantors and the Collateral Agent have caused this
Escrow Security Agreement to be duly executed as of the day and year first
above written.
▇▇▇▇▇▇ Offshore LLC, a Delaware limited
liability company
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President, Chief
Financial Officer and Secretary
▇▇▇▇▇▇ Offshore Finance Corp., a Delaware
corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President, Chief
Financial Officer and Secretary
U.S. Bank Trust National Association, as
Collateral Agent
By: /s/ ▇▇▇▇▇▇▇ H Prokosel
--------------------------------------
Name: ▇▇▇▇▇▇▇ H Prokosel
Title: Assistant Vice President
12
SCHEDULE I
Office of the Secretary of State of Texas
Office of the Secretary of State of New York
13
SCHEDULE II
1. Subsidiaries of the Grantors:
▇▇▇▇▇▇ Columbus LLC
▇▇▇▇▇▇ Magellan LLC
2. Predecessors-in-interest of the Grantors:
▇▇▇▇▇▇ Offshore Inc.
3. Names under which Grantors do business:
▇▇▇▇▇▇ Offshore LLC
▇▇▇▇▇▇ Offshore Finance Corp.
4. Grantors' place of business and chief executive office:
▇▇▇▇▇▇ Offshore LLC
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Offshore Finance Corp.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
14