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EXHIBIT 10.21
SECURITIES ACCOUNT CONTROL AGREEMENT
(Wells Fargo Affiliate Intermediary)
THIS
SECURITIES ACCOUNT CONTROL AGREEMENT (this "Agreement") is
entered
into as of DECEMBER 15,2004,
by and among CRAY INC. ("Customer"), WELLS FARGO
BANK, NATIONAL ASSOCIATION
("Intermediary"), and WELLS FARGO BANK, NATIONAL
ASSOCIATION ("Secured
Party").
RECITALS
A.
Customer maintains that certain account no. 14272100, and may now
or
hereafter maintain
sub-accounts thereunder or consolidated therewith
(collectively, the
"Securities Account") with Intermediary pursuant to an
agreement between
Intermediary and Customer dated as of February 17, 2003
(the
"Account Agreement"), and
Customer has granted to Secured Party a security
interest in the Securities
Account and all financial assets and other property
now or at any time hereafter
held in the Securities Account.
B. Secured
Party, Customer and Intermediary have agreed to enter into
this
Agreement to perfect Secured
Party's security interests in the Collateral, as
defined below.
NOW,
THEREFORE, in consideration of their mutual covenants and
promises,
the parties agree as
follows:
1.
DEFINITIONS. As used herein:
(a) the
term "Collateral" shall mean: (i) the Securities Account; (ii)
all
financial assets credited to
the Securities Account; (iii) all security
entitlements with respect to
the financial assets credited to the Securities
Account; (iv) any and all
other investment property or assets maintained or
recorded in the Securities
Account; and (v) all replacements or substitutions
for, and proceeds of the sale
or other disposition of, any of the foregoing,
including without limitation,
cash proceeds; and
(b) the
terms "investment property," "entitlement order,"
"financial
asset" and "security
entitlement" shall have the respective meanings set
forth
in the Washington Uniform
Commercial Code. The parties hereby expressly agree
that all property, including
without limitation, cash, certificates of deposit
and mutual funds, at any time
held in the Securities Account is to be treated as
a "financial
asset."
2.
AGREEMENT FOR CONTROL. Intermediary is authorized by Customer
and
agrees to comply with all
entitlement orders originated by Secured Party with
respect to the Securities
Account, and all other requests or instructions from
Secured Party regarding
disposition and/or delivery of the Collateral, without
further consent or direction
from Customer or any other party.
3.
CUSTOMER'S RIGHTS WITH RESPECT TO THE COLLATERAL.
(a) Until
Intermediary is notified otherwise by Secured Party, and
except
as permitted by Section 1 of
the Addendum to Security Agreement by and among the
parties: (i) Customer, or any
party authorized by Customer to act with respect
to the Securities Account,
may give trading instructions to Intermediary with
respect to Collateral in the
Securities Account; and (ii) Intermediary may
distribute to Customer or any
other party in accordance with Customer's
directions that portion of
the Collateral which consists of interest and/or cash
dividends earned on financial
assets maintained in the Securities Account.
(b)
Without Secured Party's prior written consent, except to the
extent
permitted by the preceding
paragraph: (i) neither Customer nor any party other
than Secured Party may
withdraw any Collateral from the Securities Account; and
(ii) Intermediary will not
comply with any entitlement order or
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request to withdraw any
Collateral from the Securities Account given by any
party other than Secured
Party.
(c) Upon
receipt of either written or oral notice from Secured Party:
(i)
Intermediary shall promptly
cease complying with entitlement orders and other
instructions concerning the
Collateral, including the Securities Account, from
all parties other than
Secured Party; and (ii) Intermediary shall not make any
further distributions of any
Collateral to any party other than Secured Party,
nor permit any further
voluntary changes in the financial assets.
4.
INTERMEDIARY'S REPRESENTATIONS AND WARRANTIES. Intermediary
represents
and warrants to Secured Party
that:
(a) The
Securities Account is maintained with Intermediary solely
in
Customer's name.
(b)
Intermediary has no knowledge of any claim to, security interest in
or
lien upon any of the
Collateral, except: (i) the security interests in favor
of
Secured Party; and (ii)
Intermediary's liens securing fees and charges, or
payment for open trade
commitments, as described in the last paragraph of this
Section.
(c) Any
claim to, security interest in or lien upon any of the
Collateral
which Intermediary now has or
at any time hereafter acquires shall be junior and
subordinate to the security
interests of Secured Party in the Collateral, except
for Intermediary's liens
securing: (i) fees and charges owed by Customer with
respect to the operation of
the Securities Account; and (ii) payment owed to
Intermediary for open trade
commitments for purchases in and for the Securities
Account.
5.
AGREEMENTS OF INTERMEDIARY AND CUSTOMER. Intermediary and
Customer
agree that:
(a)
Intermediary shall flag its books, records and systems to
reflect
Secured Party's security
interests in the Collateral, and shall provide notice
thereof to any party making
inquiry as to Customer's accounts with Intermediary
to whom or which Intermediary
is legally required or permitted to provide
information.
(b)
Intermediary shall send copies of all statements relating to
the
Securities Account
simultaneously to Customer and Secured Party.
(c)
Intermediary shall promptly notify Secured Party if any other
party
asserts any claim to,
security interest in or lien upon any of the Collateral,
and Intermediary shall not
enter into any control, custodial or other similar
agreement with any other
party that would create or acknowledge the existence of
any such other claim,
security interest or lien.
(d)
Without Secured Party's prior written consent, Intermediary
and
Customer shall not
amend
