CONFIDENTIAL — ATTORNEY WORK PRODUCT
Calderwood & Harkness LLP
[FORM — For use with each Deposit Account of each Loan Party]
DEPOSIT ACCOUNT CONTROL AGREEMENT
$80,000,000 Senior Secured Asset-Based Revolving Credit Facility
Form prepared by Calderwood & Harkness LLP in connection with the proposed Senior Secured Asset-Based Revolving Credit Facility in an aggregate principal amount of up to $80,000,000
Dated as of November 4, 2022 (Draft Date)
DEPOSIT ACCOUNT CONTROL AGREEMENT
This DEPOSIT ACCOUNT CONTROL AGREEMENT (this "Agreement") is entered into as of [__], 2022, by and among:
(1) [Greenfield Agricultural Partners LLC, an Iowa limited liability company, with its principal place of business at 4100 Grand Prairie Boulevard, Suite 300, Des Moines, Iowa 50309] [Greenfield Grain Storage LLC, an Iowa limited liability company, with its principal place of business at 4100 Grand Prairie Boulevard, Suite 310, Des Moines, Iowa 50309] [Greenfield Crop Inputs Inc., an Illinois corporation, with its principal place of business at 780 Commerce Drive, Bloomington, Illinois 61701] [select applicable Loan Party] (hereinafter referred to as the "Depositor");
(2) [Prairie National Bank, National Association, a national banking association organized and existing under the laws of the United States of America, with offices at 600 Locust Street, Suite 1500, Des Moines, Iowa 50309] [or] [Heartland Commerce Bank, National Association, a national banking association organized and existing under the laws of the United States of America, with offices at 200 South Wacker Drive, 40th Floor, Chicago, Illinois 60606] [select applicable depository bank] (hereinafter referred to as the "Bank"); and
(3) Heartland Commerce Bank, National Association, a national banking association organized and existing under the laws of the United States of America, in its capacity as Collateral Agent under the Credit Agreement (as defined below), with offices at 200 South Wacker Drive, 40th Floor, Chicago, Illinois 60606 (hereinafter referred to as the "Secured Party" or "Collateral Agent").
The Depositor, the Bank, and the Collateral Agent are sometimes referred to herein individually as a "Party" and collectively as the "Parties."
RECITALS
A. Credit Agreement. Greenfield Agricultural Partners LLC, an Iowa limited liability company (the "Borrower"), Greenfield Holdings Corp., a Delaware corporation, Greenfield Grain Storage LLC, an Iowa limited liability company, and Greenfield Crop Inputs Inc., an Illinois corporation (each, a "Guarantor" and, collectively, the "Guarantors"), the lenders from time to time party thereto (each, a "Lender" and, collectively, the "Lenders"), and Heartland Commerce Bank, National Association, as Administrative Agent and Collateral Agent, have entered into that certain Credit Agreement, dated as of [__], 2022 (as amended, restated, supplemented, or otherwise modified from time to time, the "Credit Agreement"), providing for a senior secured asset-based revolving credit facility in an aggregate principal amount of up to Eighty Million Dollars ($80,000,000) (the "Facility"). The Facility is being provided by a syndicate of Lenders comprised of: (i) Heartland Commerce Bank, National Association, with a Revolving Commitment of Forty Million Dollars ($40,000,000), representing 50.00% of the aggregate Revolving Commitments; (ii) Meridian Agricultural Credit Corporation, with a Revolving Commitment of Twenty-Five Million Dollars ($25,000,000), representing 31.25% of the aggregate Revolving Commitments; and (iii) Tallgrass Capital Fund II, LP, with a Revolving Commitment of Fifteen Million Dollars ($15,000,000), representing 18.75% of the aggregate Revolving Commitments.
B. Security Agreement. To secure the Obligations (as defined in the Credit Agreement), the Borrower, Greenfield Grain Storage LLC, and Greenfield Crop Inputs Inc. (collectively, in such capacity, the "Grantors") have entered into that certain Security Agreement, dated as of [__], 2022, in favor of Heartland Commerce Bank, National Association, as Collateral Agent for the benefit of the Secured Parties (as amended, restated, supplemented, or otherwise modified from time to time, the "Security Agreement"), pursuant to which the Grantors have granted to the Collateral Agent, for the benefit of the Secured Parties, a first-priority security interest in substantially all of the personal property assets of the Grantors, including, without limitation, all deposit accounts, in order to secure the payment and performance of all Obligations under the Credit Agreement and the other Loan Documents (as defined in the Credit Agreement).
C. Deposit Account. The Depositor maintains one or more deposit accounts with the Bank (each, a "Deposit Account"), as more particularly identified on Schedule I attached hereto and made a part hereof. The Collateral Agent has requested that the Bank enter into this Agreement in order to perfect the Collateral Agent's security interest in the Deposit Account(s) by obtaining "control" over such Deposit Account(s) within the meaning of Section 9-104 of the Uniform Commercial Code as in effect in the State of Illinois (the "UCC").
D. Purpose. This Agreement is being entered into in order to satisfy the conditions precedent set forth in the Credit Agreement requiring the execution and delivery of deposit account control agreements with respect to each Deposit Account of each Loan Party (as defined in the Credit Agreement), and to establish the rights and obligations of the Parties with respect to the Deposit Account(s) described herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
ARTICLE I — DEFINITIONS
Section 1.1 — Defined Terms
As used in this Agreement, the following terms shall have the following meanings:
"Activation Notice" means a written notice substantially in the form of Exhibit A attached hereto, delivered by the Collateral Agent to the Bank, directing the Bank to comply solely with instructions originated by the Collateral Agent with respect to the Deposit Account(s), without further consent of the Depositor. An Activation Notice shall be deemed effective upon actual receipt by the Bank at the address specified in Section 9.1 hereof or at such other address as may be designated by the Bank in writing to the Collateral Agent.
"Bank" means the entity identified as such in the Preamble to this Agreement, together with its successors and assigns.
"Collateral Agent" means Heartland Commerce Bank, National Association, in its capacity as Collateral Agent under the Credit Agreement, and its successors and assigns in such capacity. For the avoidance of doubt, any successor collateral agent appointed in accordance with the terms of the Credit Agreement shall automatically succeed to all of the rights and benefits of the Collateral Agent under this Agreement.
"Credit Agreement" has the meaning assigned to such term in Recital A hereof.
"Deposit Account" means each deposit account maintained by the Depositor at the Bank as identified on Schedule I hereto, together with any successor account, replacement account, or renumbered account thereof, and all funds and amounts from time to time on deposit therein or credited thereto.
"Depositor" means the entity identified as such in the Preamble to this Agreement, together with its successors and permitted assigns.
"Lien" means any lien, pledge, hypothecation, mortgage, security interest, charge, encumbrance, right of setoff, right of recoupment, banker's lien, or similar interest or right, whether voluntary or involuntary, contingent or absolute, direct or indirect.
"Loan Documents" has the meaning assigned to such term in the Credit Agreement and includes, without limitation, the Credit Agreement, the Security Agreement, this Agreement, and all other documents, instruments, and agreements executed and delivered in connection therewith.
"Obligations" means all obligations, liabilities, and indebtedness of every nature of the Borrower and the Guarantors arising under or in connection with the Credit Agreement, the Security Agreement, and the other Loan Documents, whether for principal, interest (including any interest that accrues after the commencement of any insolvency, receivership, or similar proceeding, regardless of whether allowed or allowable in such proceeding), fees, premiums, penalties, indemnifications, reimbursements, damages, expenses, or other amounts, and whether now existing or hereafter arising, direct or indirect, absolute or contingent, joint or several, matured or unmatured, liquidated or unliquidated.
"Permitted Bank Claims" has the meaning assigned to such term in Section 4.1 hereof.
"Secured Parties" means, collectively, the Collateral Agent, the Administrative Agent (as defined in the Credit Agreement), and the Lenders from time to time party to the Credit Agreement, and their respective successors and assigns.
"Security Agreement" has the meaning assigned to such term in Recital B hereof.
"UCC" means the Uniform Commercial Code as in effect from time to time in the State of Illinois, provided that, if perfection or the effect of perfection or non-perfection or the priority of any security interest in any Deposit Account is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of Illinois, "UCC" shall mean the Uniform Commercial Code as in effect in such other jurisdiction for purposes of the provisions hereof relating to such perfection, effect of perfection or non-perfection, or priority.
Section 1.2 — UCC Terms
Terms used but not otherwise defined in this Agreement that are defined in the UCC shall have the respective meanings ascribed to such terms in the UCC, including, without limitation, the terms "deposit account," "proceeds," "control," "good faith," "general intangible," and "value."
Section 1.3 — Other Definitional Provisions
(a) All references in this Agreement to "Articles," "Sections," "Schedules," and "Exhibits" shall be deemed to refer to Articles, Sections, Schedules, and Exhibits of or to this Agreement, unless the context shall otherwise require.
(b) The words "hereof," "herein," "hereto," and "hereunder" and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole and not to any particular provision of this Agreement.
(c) The use of the word "including" in this Agreement shall be by way of example rather than by limitation and shall be deemed to mean "including, without limitation."
(d) Unless the context shall otherwise require, any reference to any agreement or other document shall be deemed to include such agreement or document as it may be amended, restated, supplemented, or otherwise modified from time to time.
(e) Words importing the singular number shall include the plural and vice versa, and words importing any gender shall include all genders.
(f) All references to time of day shall mean Chicago, Illinois time unless otherwise specified.
ARTICLE II — CONTROL
Section 2.1 — Establishment of Control
(a) The Bank hereby agrees that it will comply with instructions originated by the Collateral Agent directing the disposition of the funds in the Deposit Account(s) without further consent of the Depositor, thereby establishing "control" of the Deposit Account(s) in favor of the Collateral Agent within the meaning of Section 9-104(a)(2) of the UCC. The Bank acknowledges and agrees that its agreement to comply with the Collateral Agent's instructions constitutes an agreement sufficient to provide the Collateral Agent with "control" of each Deposit Account for purposes of UCC Section 9-104(a)(2), and the Bank hereby confirms that the Collateral Agent has "control" over each Deposit Account within the meaning of the UCC.
(b) Notwithstanding the foregoing, prior to the Bank's receipt of an Activation Notice from the Collateral Agent in accordance with Section 2.2 hereof, the Bank shall continue to honor and comply with instructions originated by the Depositor with respect to the Deposit Account(s) in the ordinary course of the Depositor's business, including, without limitation, instructions relating to withdrawals, transfers, payments, and other dispositions of funds, subject to the terms and conditions of this Agreement and any applicable account agreements between the Bank and the Depositor. The Bank's obligation to comply with instructions from the Collateral Agent shall be in addition to, and not in limitation of, the Bank's obligation to honor the Depositor's instructions during the period prior to the receipt of an Activation Notice.
(c) The Bank shall not enter into any agreement with any other person or entity purporting to grant such person or entity "control" (within the meaning of UCC Section 9-104) over any Deposit Account listed on Schedule I hereto, or otherwise grant to any other person or entity any Lien on any such Deposit Account, unless the Collateral Agent has provided its prior written consent to such agreement. Any such agreement entered into without the Collateral Agent's prior written consent shall be void and of no force or effect as against the Collateral Agent.
Section 2.2 — Activation Notice
(a) Upon receipt by the Bank of an Activation Notice from the Collateral Agent, delivered in accordance with Section 9.1 hereof:
(i) the Bank shall comply solely with instructions originated by the Collateral Agent with respect to the Deposit Account(s) identified in such Activation Notice (or, if the Activation Notice does not identify specific Deposit Accounts, with respect to all Deposit Accounts listed on Schedule I hereto), including, without limitation, instructions directing the Bank to transfer, pay, or otherwise dispose of funds in such Deposit Account(s);
(ii) the Bank shall immediately cease complying with any and all instructions originated by the Depositor regarding the Deposit Account(s) subject to such Activation Notice, including, without limitation, instructions relating to withdrawals, transfers, payments, check-writing privileges, debit card access, automated clearing house transfers, wire transfers, and any other dispositions of funds, unless the Collateral Agent has provided specific written instructions to the Bank authorizing the Bank to continue to honor specified instructions from the Depositor;
(iii) the Activation Notice shall remain in full force and effect, and the Bank shall continue to comply solely with instructions from the Collateral Agent, until such time as the Bank receives a written notice from the Collateral Agent, delivered in accordance with Section 9.1 hereof, expressly rescinding the Activation Notice (a "Rescission Notice"); and
(iv) upon receipt of a Rescission Notice, the Bank shall resume honoring instructions from the Depositor with respect to the applicable Deposit Account(s) in accordance with the terms of this Agreement and the applicable account agreements between the Bank and the Depositor.
(b) The Bank shall be entitled to rely conclusively, and shall be fully protected in acting or refraining from acting, upon any Activation Notice (or any Rescission Notice) that the Bank believes in good faith to be genuine and to have been signed or sent by an authorized representative of the Collateral Agent. The Bank shall have no duty to investigate or inquire into the basis for any Activation Notice or to verify the authority of any person purporting to deliver an Activation Notice on behalf of the Collateral Agent. The Bank shall not be liable to the Depositor, the Collateral Agent, or any other person for any action taken or omitted to be taken by the Bank in good faith reliance on any Activation Notice or Rescission Notice.
(c) The Bank shall use commercially reasonable efforts to implement the instructions contained in any Activation Notice as promptly as practicable following receipt thereof, and in any event within one (1) business day following receipt of such Activation Notice. The form of Activation Notice is attached hereto as Exhibit A.
Section 2.3 — Depositor's Rights Prior to Activation
(a) Until such time as the Bank receives an Activation Notice in accordance with Section 2.2 hereof, the Depositor shall be entitled to exercise all of its rights with respect to the Deposit Account(s), including, without limitation, the right to make deposits to and withdrawals from the Deposit Account(s), to direct transfers of funds from the Deposit Account(s) to other accounts, to issue checks, drafts, and payment orders drawn on the Deposit Account(s), to initiate wire transfers and automated clearing house transactions, and to otherwise transact business with respect to the Deposit Account(s) in the ordinary course of the Depositor's business, all in accordance with the terms and conditions of the applicable account agreements between the Depositor and the Bank.
(b) The Collateral Agent's security interest in the Deposit Account(s) is acknowledged and agreed to by the Bank; provided, however, that such security interest shall not restrict, limit, or impair the Depositor's rights to transact business with respect to the Deposit Account(s) in the ordinary course prior to the Bank's receipt of an Activation Notice. Nothing in this Section 2.3 shall be deemed to limit or modify the Collateral Agent's rights under Section 2.1 or Section 2.2 of this Agreement.
ARTICLE III — DEPOSIT ACCOUNT INFORMATION
Section 3.1 — Account Identification
(a) The Deposit Account(s) subject to this Agreement are identified and described on Schedule I attached hereto and incorporated herein by reference. Schedule I sets forth, with respect to each such Deposit Account, the account name, account number, account type, bank branch or location at which the account is maintained, the Depositor entity name, and the Depositor's employer identification number.
(b) [To be completed with specific account information for each Loan Party prior to closing. Separate DACAs or separate Schedule Is to be prepared for each combination of Depositor and Bank.]
(c) In the event that any Deposit Account is renumbered, replaced, or succeeded by a new account at the Bank, such renumbered, replacement, or successor account shall automatically be subject to all of the terms and provisions of this Agreement, and Schedule I shall be deemed amended to reflect such change. The Bank shall promptly notify the Collateral Agent and the Depositor in writing of any such renumbering, replacement, or succession.
Section 3.2 — Statements and Notices
(a) The Bank shall send copies of all periodic account statements (including monthly statements, and, if available, daily balance reports) for each Deposit Account to both the Depositor and the Collateral Agent. Such statements shall be sent to the following addresses, or to such other addresses as the applicable Party may designate in writing from time to time in accordance with Section 9.1 hereof:
(i) To the Collateral Agent:
Heartland Commerce Bank, National Association 200 South Wacker Drive, 40th Floor Chicago, Illinois 60606
Attention: Allison Kuo, Vice President, ABL Structuring
Email: akuo@heartlandcommerce.com
(ii) To the Depositor:
At the applicable Loan Party's address set forth in the Preamble to this Agreement, or as otherwise set forth in Section 9.1 hereof.
(b) The Bank shall promptly notify the Collateral Agent in writing of any legal process, garnishment, levy, attachment, or other order or claim served on or asserted against any Deposit Account, to the extent the Bank has knowledge thereof.
Section 3.3 — Balance Inquiries
The Bank shall respond to the Collateral Agent's reasonable inquiries regarding the current balance(s) in the Deposit Account(s) and the status of any pending transactions with respect thereto within two (2) business days of the Bank's receipt of such inquiry. Such inquiries may be made by the Collateral Agent via telephone, email, or in writing, and the Bank shall respond in such manner as the Collateral Agent may reasonably request. The Bank shall not charge the Collateral Agent any fee for responding to such balance inquiries, provided that the Bank may charge the Depositor for such services in accordance with the Bank's standard fee schedule.
ARTICLE IV — PRIORITY; SUBORDINATION OF BANK'S LIENS
Section 4.1 — Priority of Collateral Agent's Security Interest
(a) The Bank hereby acknowledges and agrees that the Collateral Agent has a first-priority security interest in each Deposit Account and all funds, cash, instruments, and other items on deposit therein or credited thereto, and all proceeds thereof, which security interest has been perfected by control pursuant to this Agreement and the UCC. The Bank agrees that the Collateral Agent's security interest in each Deposit Account is superior in right and priority to any and all claims, interests, and rights of the Bank with respect thereto, subject only to the Permitted Bank Claims described in Section 4.1(b) below.
(b) The Bank hereby irrevocably and unconditionally subordinates any and all Liens (including, without limitation, any right of setoff, right of recoupment, banker's lien, security interest, or other claim or interest of any kind whatsoever, whether arising by operation of law, by contract, or otherwise) that the Bank may now or hereafter have in, on, or with respect to each Deposit Account and all funds on deposit therein, to the Lien of the Collateral Agent in such Deposit Account(s); provided, however, that the Bank does not subordinate its Lien with respect to, and the Collateral Agent's Lien shall be subject to, the following (collectively, the "Permitted Bank Claims"):
(i) the amount of any items deposited to a Deposit Account and returned unpaid or otherwise not finally collected;
(ii) the amount of any chargebacks or adjustments for returned deposited items, encoding errors, or similar adjustments in the normal course of the Bank's operations; and
(iii) customary fees, charges, and expenses for the maintenance and operation of the Deposit Account(s), including, without limitation, monthly maintenance fees, per-item charges, wire transfer fees, and similar standard banking fees, all in accordance with the Bank's published fee schedule as in effect from time to time;
provided, further, that the aggregate amount of all Permitted Bank Claims outstanding at any time with respect to all Deposit Accounts subject to this Agreement shall not exceed [$ ______] [Dollar cap to be inserted — review with Ian Blackwood and Allison Kuo]. To the extent that the aggregate amount of Permitted Bank Claims exceeds such dollar cap, the excess shall be subordinate to the Collateral Agent's Lien.
(c) The Bank agrees that it will not exercise any right of setoff, recoupment, banker's lien, or similar right against any Deposit Account or the funds therein (other than with respect to Permitted Bank Claims not in excess of the cap specified in Section 4.1(b)) without the prior written consent of the Collateral Agent.
Section 4.2 — No Other Liens
(a) The Bank represents and warrants to the Collateral Agent that, as of the date hereof, the Bank has not entered into any agreement with any person or entity (other than the Depositor and the Collateral Agent) purporting to grant such person or entity control (within the meaning of UCC Section 9-104) or any Lien over any Deposit Account listed on Schedule I hereto. The Bank further represents and warrants that, as of the date hereof, no person or entity (other than the Depositor and the Collateral Agent) has any Lien on or interest in any Deposit Account listed on Schedule I, to the knowledge of the Bank.
(b) The Bank agrees that it will not enter into any agreement with any person or entity purporting to grant such person or entity control (within the meaning of UCC Section 9-104) or any Lien over any Deposit Account listed on Schedule I hereto without the prior written consent of the Collateral Agent. Any such agreement entered into in violation of this Section 4.2(b) shall be void and of no force or effect as against the Collateral Agent.
ARTICLE V — REPRESENTATIONS AND WARRANTIES
Section 5.1 — Bank Representations
The Bank hereby represents and warrants to the Collateral Agent and the Depositor as of the date hereof as follows:
(a) Organization and Authority. The Bank is a [national banking association] [or state-chartered bank, as applicable] duly organized, validly existing, and in good standing under the laws of the United States of America [or the applicable state of organization]. The Bank has the corporate power and authority to execute, deliver, and perform this Agreement and to carry out the transactions contemplated hereby. The execution, delivery, and performance by the Bank of this Agreement have been duly authorized by all necessary corporate action on the part of the Bank, and no further action or approval is required.
(b) Enforceability. This Agreement has been duly executed and delivered by the Bank and constitutes the legal, valid, and binding obligation of the Bank, enforceable against the Bank in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting the enforcement of creditors' rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law).
(c) Deposit Account Information. The Deposit Account(s) listed on Schedule I hereto are maintained at the Bank in the name of the Depositor as set forth on Schedule I. To the knowledge of the Bank, the Deposit Accounts listed on Schedule I are the only deposit accounts maintained by the Depositor at the Bank as of the date hereof. If the Depositor maintains any additional deposit accounts at the Bank that are not listed on Schedule I, the Bank shall promptly notify the Collateral Agent and the Depositor in writing, and such accounts shall be added to Schedule I (or a separate deposit account control agreement shall be executed with respect thereto).
(d) Bank's Jurisdiction. The Bank's jurisdiction, as determined under UCC Section 9-304, with respect to each Deposit Account listed on Schedule I, is the State of [Illinois] [or Iowa — to be completed based on bank branch location and applicable law].
(e) No Conflicts. The execution, delivery, and performance by the Bank of this Agreement does not and will not (i) violate or conflict with the Bank's articles of association, charter, bylaws, or other organizational documents, (ii) violate or conflict with any law, regulation, order, judgment, or decree applicable to the Bank, or (iii) result in a breach of or default under any material agreement or instrument to which the Bank is a party or by which it or its assets may be bound.
Section 5.2 — Depositor Representations
The Depositor hereby represents and warrants to the Collateral Agent and the Bank as of the date hereof as follows:
(a) Ownership. The Depositor is the sole and exclusive owner of each Deposit Account listed on Schedule I hereto and has full right, title, and interest in and to each such Deposit Account and all funds on deposit therein. The Depositor has not assigned, transferred, pledged, hypothecated, or granted any Lien on or interest in any Deposit Account or the funds therein to any person or entity other than to the Collateral Agent pursuant to the Security Agreement.
(b) Accuracy of Information. The information set forth on Schedule I with respect to each Deposit Account (including, without limitation, account names, account numbers, account types, and the Depositor's employer identification number) is true, correct, and complete in all material respects as of the date hereof.
(c) Employer Identification Numbers. For purposes of the UCC and for informational purposes, the Depositor's employer identification number is as follows:
• Greenfield Agricultural Partners LLC: EIN 47-3918265
• Greenfield Grain Storage LLC: EIN 84-2093417
• Greenfield Crop Inputs Inc.: EIN 37-6182049
[Select applicable Depositor entity above.]
(d) Authority. The Depositor has the limited liability company [or corporate] power and authority to execute, deliver, and perform this Agreement and to carry out the transactions contemplated hereby. The execution, delivery, and performance by the Depositor of this Agreement have been duly authorized by all necessary limited liability company [or corporate] action on the part of the Depositor.
(e) Enforceability. This Agreement has been duly executed and delivered by the Depositor and constitutes the legal, valid, and binding obligation of the Depositor, enforceable against the Depositor in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting the enforcement of creditors' rights generally and by general equitable principles.
ARTICLE VI — COVENANTS
Section 6.1 — Maintenance of Deposit Accounts
(a) The Depositor shall not close, terminate, or consolidate any Deposit Account listed on Schedule I without the prior written consent of the Collateral Agent. Any purported closure, termination, or consolidation of a Deposit Account without such consent shall be ineffective against the Collateral Agent.
(b) The Depositor shall not change the name, title, or account number on any Deposit Account listed on Schedule I without providing prior written notice to the Collateral Agent at least ten (10) business days before the effective date of any such change.
(c) The Bank shall not close, terminate, or consolidate any Deposit Account listed on Schedule I without providing prior written notice to the Collateral Agent at least ten (10) business days before the effective date of any such action, unless such closure is required by applicable law or regulation, in which case the Bank shall provide notice to the Collateral Agent as promptly as practicable.
Section 6.2 — No Modification of Account Terms
The Bank shall not agree to any amendment, modification, supplement, or waiver of the terms and conditions governing any Deposit Account (including, without limitation, any account agreement, depository agreement, or treasury management agreement between the Bank and the Depositor) that would reasonably be expected to materially and adversely impair the Collateral Agent's rights under this Agreement, without the prior written consent of the Collateral Agent. For the avoidance of doubt, routine changes to the Bank's standard fee schedule or account terms of general applicability shall not require the Collateral Agent's prior written consent, provided that the Bank shall promptly notify the Collateral Agent of any such changes that materially affect the Deposit Account(s).
Section 6.3 — Additional Accounts
If the Depositor opens any additional deposit account at the Bank after the date hereof, the Depositor shall promptly (and in any event within five (5) business days after the opening of such account) (a) cause such account to be made subject to this Agreement (by execution of an amendment to Schedule I hereto reasonably satisfactory to the Collateral Agent) or to a new deposit account control agreement in form and substance reasonably satisfactory to the Collateral Agent, and (b) deliver written notice to the Collateral Agent identifying such additional account (including the account number, account type, and account name). The Bank agrees to cooperate with the Depositor and the Collateral Agent in connection with the execution and delivery of any such amendment or new deposit account control agreement.
Section 6.4 — Compliance with Credit Agreement
The Depositor acknowledges and agrees that the Credit Agreement requires, among other things, that deposit account control agreements be executed and delivered with respect to all operating accounts and other deposit accounts of each Loan Party (as defined in the Credit Agreement). The Depositor further acknowledges that the Credit Agreement requires maintenance at all times of minimum Excess Availability (as defined in the Credit Agreement) of not less than Five Million Dollars ($5,000,000). The Depositor shall comply with all applicable covenants set forth in the Credit Agreement, and nothing in this Agreement shall be deemed to limit or modify the Depositor's obligations under the Credit Agreement or the other Loan Documents.
ARTICLE VII — INDEMNIFICATION
Section 7.1 — Indemnification of the Bank
(a) The Depositor agrees to indemnify, defend, and hold harmless the Bank and its officers, directors, employees, agents, representatives, successors, and affiliates (each, a "Bank Indemnified Party") from and against any and all claims, demands, actions, suits, proceedings, investigations, losses, liabilities, damages, costs, and expenses of any kind or nature whatsoever (including, without limitation, reasonable and documented out-of-pocket attorneys' fees and disbursements, court costs, and expenses of investigation and litigation) (collectively, "Losses") that may be incurred by or asserted or awarded against any Bank Indemnified Party, in each case arising out of, relating to, or in connection with (i) this Agreement, (ii) any Activation Notice or Rescission Notice delivered hereunder, (iii) the Bank's compliance with the instructions of the Collateral Agent or the Depositor hereunder, or (iv) any claim or dispute between the Depositor and the Collateral Agent regarding the Deposit Account(s) or the funds therein; provided, however, that the Depositor shall not be obligated to indemnify any Bank Indemnified Party to the extent that any such Losses are determined by a court of competent jurisdiction in a final, non-appealable judgment to have resulted directly and primarily from the gross negligence, willful misconduct, or bad faith of such Bank Indemnified Party.
(b) Without limiting the generality of the foregoing, the Depositor shall be responsible for, and shall indemnify each Bank Indemnified Party against, all Losses arising from any conflicting claims to, or instructions with respect to, the Deposit Account(s) or the funds therein.
Section 7.2 — Bank's Limitation of Liability
(a) The Bank shall not be liable to the Depositor, the Collateral Agent, or any other person or entity for any losses, claims, damages, liabilities, costs, or expenses arising from or relating to the Bank's compliance in good faith with instructions received from the Collateral Agent (including, without limitation, any instructions contained in an Activation Notice), whether or not such instructions are subsequently determined to have been erroneous, unauthorized, or otherwise improper.
(b) The Bank shall have no duty or obligation to (i) monitor or police the Deposit Account(s) or the use of funds therein, (ii) inquire into the authority, validity, accuracy, or appropriateness of any instruction received from the Collateral Agent or the Depositor, (iii) determine whether any event of default or other triggering event has occurred under the Credit Agreement, the Security Agreement, or any other Loan Document, or (iv) take any action with respect to the Deposit Account(s) other than as expressly set forth in this Agreement.
(c) In no event shall the Bank be liable for any indirect, special, incidental, consequential, punitive, or exemplary damages of any kind, regardless of the form of action, whether in contract, tort (including negligence), strict liability, or otherwise, even if the Bank has been advised of the possibility of such damages.
ARTICLE VIII — TERMINATION
Section 8.1 — Termination by Collateral Agent
This Agreement shall terminate upon the earliest to occur of the following:
(a) the date on which the Bank receives written notice from the Collateral Agent to the Bank and the Depositor stating that this Agreement is terminated (a "Termination Notice");
(b) the date on which all Deposit Account(s) listed on Schedule I hereto have been closed with the prior written consent of the Collateral Agent, and all funds on deposit therein have been disbursed in accordance with the instructions of the Collateral Agent; and
(c) the date on which (i) all Obligations have been indefeasibly paid in full in cash, (ii) all commitments of the Lenders to extend credit under the Credit Agreement have been irrevocably terminated, and (iii) all letters of credit (if any) issued under the Credit Agreement have expired or been terminated or cash collateralized in accordance with the terms of the Credit Agreement, and the Collateral Agent has delivered written confirmation thereof to the Bank.
Upon termination of this Agreement, the Bank shall have no further obligations to the Collateral Agent hereunder, and the Collateral Agent's rights with respect to the Deposit Account(s) under this Agreement shall cease. The Bank shall be entitled to rely on any Termination Notice or written confirmation delivered by the Collateral Agent without further inquiry.
Section 8.2 — Termination by the Bank
The Bank may terminate this Agreement upon not less than thirty (30) days' prior written notice to the Collateral Agent and the Depositor; provided, however, that such termination shall not become effective until the earlier of (a) sixty (60) days after delivery of such notice and (b) such time as the Collateral Agent has confirmed in writing to the Bank that the Collateral Agent has made alternative arrangements for the maintenance of the Deposit Account(s) or the perfection of its security interest therein. The Bank agrees to cooperate in good faith with the Collateral Agent and the Depositor during such transition period, including by continuing to comply with the terms of this Agreement until the effective date of such termination.
Section 8.3 — Survival
The indemnification obligations of the Depositor under Article VII of this Agreement, and the limitations on the Bank's liability set forth in Section 7.2 hereof, shall survive the termination of this Agreement and shall continue in full force and effect with respect to any Losses arising out of or relating to events occurring prior to such termination.
ARTICLE IX — MISCELLANEOUS
Section 9.1 — Notices
(a) All notices, requests, demands, consents, waivers, instructions, and other communications required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given (i) when delivered personally or by commercial courier service, (ii) on the next business day after deposit with a nationally recognized overnight courier service (with all charges prepaid or billed to the account of the sender), (iii) if sent by registered or certified mail, return receipt requested, on the fifth (5th) business day after the date of mailing, or (iv) if sent by email (with confirmation of transmission), when transmitted, in each case addressed or directed to the applicable Party at the address set forth below (or at such other address as such Party may designate by notice to the other Parties in accordance with this Section 9.1):
If to the Collateral Agent:
Heartland Commerce Bank, National Association 200 South Wacker Drive, 40th Floor Chicago, Illinois 60606
Attention: Allison Kuo, Vice President, ABL Structuring
Email: akuo@heartlandcommerce.com
with a copy (which shall not constitute notice) to:
Kessler, Brandt & Whitfield LLP 311 South Wacker Drive, Suite 5400 Chicago, Illinois 60606
Attention: Richard Whitfield
Email: rwhitfield@kbwlaw.com
If to the Depositor:
[If Greenfield Agricultural Partners LLC:]
Greenfield Agricultural Partners LLC 4100 Grand Prairie Boulevard, Suite 300 Des Moines, Iowa 50309
Attention: Patricia Calloway, Chief Financial Officer
Email: pcalloway@greenfieldagpartners.com
with a copy (which shall not constitute notice) to:
Calderwood & Harkness LLP 150 North Michigan Avenue, Suite 3600 Chicago, Illinois 60601
Attention: Ian Blackwood
Email: iblackwood@calderwoodharkness.com
[If Greenfield Grain Storage LLC:]
Greenfield Grain Storage LLC 4100 Grand Prairie Boulevard, Suite 310 Des Moines, Iowa 50309
Attention: Raymond Foss, Vice President of Operations
Email: rfoss@greenfieldgrainstorage.com
[If Greenfield Crop Inputs Inc.:]
Greenfield Crop Inputs Inc. 780 Commerce Drive Bloomington, Illinois 61701
Attention: Nina Vasquez, General Counsel
Email: nvasquez@greenfieldcropinputs.com
If to the Bank:
[If Prairie National Bank, National Association:]
Prairie National Bank, National Association 600 Locust Street, Suite 1500 Des Moines, Iowa 50309
Attention: Janet Braddock, Senior Vice President, Agricultural Banking
Email: jbraddock@prairienationalbank.com
[If Heartland Commerce Bank, National Association:]
Heartland Commerce Bank, National Association 200 South Wacker Drive, 40th Floor Chicago, Illinois 60606
Attention: Allison Kuo, Vice President, ABL Structuring
Email: akuo@heartlandcommerce.com
(b) Any Party may change its address for notice purposes by giving written notice of such change to the other Parties in accordance with this Section 9.1.
Section 9.2 — Governing Law
This Agreement and the rights and obligations of the Parties hereunder shall be governed by, and construed and interpreted in accordance with, the laws of the State of Illinois (including the UCC as in effect in the State of Illinois), without giving effect to any choice-of-law or conflict-of-law rules or provisions (whether of the State of Illinois or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Illinois. To the extent that the UCC as in effect in any other jurisdiction governs the perfection or priority of the Collateral Agent's security interest in any Deposit Account, the laws of such other jurisdiction shall apply solely with respect to such matters of perfection and priority.
Section 9.3 — Jurisdiction; Venue; Waiver of Jury Trial
(a) Jurisdiction and Venue. Each Party hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of the United States District Court for the Northern District of Illinois and the Circuit Court of Cook County, Illinois, in any action or proceeding arising out of or relating to this Agreement or any transaction contemplated hereby, and each Party hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such courts. Each Party hereby irrevocably and unconditionally waives, to the fullest extent permitted by applicable law, any objection that it may now or hereafter have to the laying of venue of any action or proceeding arising out of or relating to this Agreement in any court referred to in this Section 9.3(a), and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action or proceeding brought in any such court has been brought in an inconvenient forum.
(b) WAIVER OF JURY TRIAL. EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, CLAIM, OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THE ACTIONS OF ANY PARTY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE, OR ENFORCEMENT HEREOF. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT, OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (II) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (III) EACH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (IV) EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.3(b).
Section 9.4 — Amendments
This Agreement may not be amended, modified, supplemented, restated, or waived except by a written instrument duly executed and delivered by each of the Depositor, the Bank, and the Collateral Agent. No failure or delay on the part of any Party in exercising any right, power, or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, power, or privilege hereunder.
Section 9.5 — Successors and Assigns
(a) This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective successors and assigns. The Depositor may not assign its rights or obligations under this Agreement without the prior written consent of the Collateral Agent. The Bank may not assign its rights or obligations under this Agreement without the prior written consent of the Collateral Agent and the Depositor, except in connection with a merger, consolidation, or sale of all or substantially all of the Bank's assets, in which case the successor or assignee shall be bound by the terms of this Agreement.
(b) Any successor Collateral Agent appointed in accordance with the terms of the Credit Agreement shall, without the need for any further action or consent by any Party, automatically succeed to all of the rights, powers, and benefits of the Collateral Agent under this Agreement, and references herein to the "Collateral Agent" shall be deemed to refer to such successor.
Section 9.6 — Counterparts; Electronic Execution
This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, and all of which, taken together, shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this Agreement by facsimile, portable document format (.pdf), or other electronic transmission shall be effective as delivery of a manually executed counterpart of this Agreement. The words "execution," "execute," "signed," "signature," and words of like import in or related to this Agreement shall be deemed to include electronic signatures, deliveries, or the keeping of records in electronic form, each of which shall be of the same legal effect, validity, or enforceability as a manually executed signature, physical delivery thereof, or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the Illinois Electronic Commerce Security Act, and any other applicable state laws based on the Uniform Electronic Transactions Act.
Section 9.7 — Entire Agreement
This Agreement, together with the Credit Agreement, the Security Agreement, and the other Loan Documents, constitutes the entire agreement among the Parties with respect to the subject matter hereof and supersedes all prior agreements, understandings, negotiations, and discussions, whether oral or written, of the Parties with respect to the subject matter hereof. There are no representations, warranties, conditions, covenants, or other agreements, express or implied, collateral, statutory, or otherwise, between the Parties in connection with the subject matter of this Agreement, except as specifically set forth herein.
Section 9.8 — Conflict with Other Agreements
(a) In the event of any conflict or inconsistency between the terms and provisions of this Agreement and any other agreement between the Bank and the Depositor governing any Deposit Account (including, without limitation, any account agreement, depository agreement, treasury management agreement, or similar agreement), the terms and provisions of this Agreement shall control and prevail to the extent of such conflict or inconsistency.
(b) In the event of any conflict or inconsistency between the terms and provisions of this Agreement and the terms and provisions of the Credit Agreement or the Security Agreement, as between the Depositor and the Collateral Agent, the terms and provisions of the Credit Agreement shall control and prevail to the extent of such conflict or inconsistency.
Section 9.9 — Severability
If any provision of this Agreement shall be held to be invalid, illegal, or unenforceable by any court of competent jurisdiction, such invalidity, illegality, or unenforceability shall not affect or impair any other provision of this Agreement, and the remaining provisions of this Agreement shall continue in full force and effect. In such event, the Parties shall negotiate in good faith to replace the invalid, illegal, or unenforceable provision with a valid, legal, and enforceable provision that, to the greatest extent possible, achieves the economic, business, and other purposes of the original provision.
Section 9.10 — Headings
The headings, captions, and arrangements used in this Agreement are for convenience of reference only and shall not be deemed to limit, amplify, modify, or otherwise affect the meaning or interpretation of any provision of this Agreement.
IN WITNESS WHEREOF, the Parties have caused this Deposit Account Control Agreement to be duly executed and delivered by their respective authorized officers as of the date first written above.
[Signature Pages Follow]
DEPOSITOR:
[Select applicable Loan Party]