SECURITIES ACCOUNT CONTROL AGREEMENTS
FORMS AND EXECUTION VERSIONS
Nexford Industrial Holdings Inc. $1,400,000,000 Senior Secured Term Loan B Credit Agreement dated as of March 28, 2025 among Nexford Industrial Holdings Inc., as Borrower, The Guarantors Party Thereto, Crescent Harbor Bank, N.A., as Administrative Agent and Collateral Agent, and The Lenders Party Thereto Prepared by: Calderwood & Harkness LLP 425 Lexington Avenue New York, New York 10017 March 28, 2025
CONFIDENTIAL — This document constitutes attorney work product and is subject to the attorney-client privilege. Distribution is limited to the addressees set forth in the Cover Memorandum. Unauthorized reproduction or distribution is strictly prohibited.
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PART I COVER MEMORANDUM
MEMORANDUM
FROM: Sophie Tremblay Calderwood & Harkness LLP 425 Lexington Avenue New York, New York 10017 Telephone: (212) 558-4000
Email: stremblay@calderwoodharkness.com
TO: Transaction File — Matter No. 1005-00001 (Billing Code: IBL-NIH-2025-031)
DATE: March 28, 2025
RE: Securities Account Control Agreements — Nexford Industrial Holdings Inc. $1,400,000,000 Senior Secured Term Loan B
I. Purpose. This memorandum accompanies the compilation of Securities Account Control Agreements (each, a "SACA" and collectively, the "SACAs") executed in connection with the closing of the $1,400,000,000 senior secured Term Loan B facility (the "Term Loan B") pursuant to that certain Credit Agreement dated as of March 28, 2025 (as it may be amended, restated, supplemented, or otherwise modified from time to time, the "Credit Agreement"), among Nexford Industrial Holdings Inc., a Delaware corporation (the "Borrower"), the Guarantors party thereto, Crescent Harbor Bank, N.A., as Administrative Agent and Collateral Agent (in its capacity as Collateral Agent, the "Collateral Agent"), Ironwood Capital Markets, LLC and Northvane Securities, Inc., as Joint Lead Arrangers and Joint Bookrunners, and the Lenders from time to time party thereto.
The SACAs are required under the Security Agreement dated as of March 28, 2025 (the "Security Agreement"), among the Borrower, the Guarantors, and the Collateral Agent, to perfect the Collateral Agent's security interest in securities accounts maintained by the Loan Parties by obtaining "control" within the meaning of Sections 8-106 and 9-106 of the Uniform Commercial Code as in effect in the State of New York (the "UCC"). Section 4.01(g) of the Credit Agreement and Section 5.14 of the Security Agreement each require delivery of executed SACAs with respect to all securities accounts maintained by Loan Parties as a condition precedent to the initial funding of the Term Loan B on the Closing Date. Each SACA has been executed and delivered by the applicable Grantor, the applicable Securities Intermediary, and Crescent Harbor Bank, N.A. as Collateral Agent, in each case as of March 28, 2025.
The form of SACA was negotiated among borrower's counsel (Calderwood & Harkness LLP), agent's counsel (Whitfield & Gage LLP), and the applicable securities intermediaries. The form was circulated in substantially final form on March 19, 2025, with final comments received and incorporated on March 25, 2025. All parties confirmed their authorization to execute as of the Closing Date.
II. Summary of Executed SACAs
The following table sets forth a summary of each executed SACA delivered at the closing on March 28, 2025:
The securities accounts listed above are maintained by certain Loan Parties for cash management, short-term investment, and treasury purposes, including the investment of operating cash in money market instruments, commercial paper, and short-term government obligations in accordance with the investment policies of Nexford Industrial Holdings Inc. and the investment limitations set forth in Section 7.06 of the Credit Agreement. The number of SACAs (ten) corresponds to the number of Loan Parties maintaining securities accounts with securities intermediaries as of the Closing Date. Certain Loan Parties that maintain only deposit accounts (and no securities accounts) are not party to any SACA and are instead covered exclusively by the Deposit Account Control Agreements executed concurrently herewith.
III. Relationship to Other Collateral Documents
These SACAs complement the Deposit Account Control Agreements (each, a "DACA" and collectively, the "DACAs") executed concurrently for deposit accounts maintained at Crescent Harbor Bank, N.A. and Redstone National Bank (accounts ending in -4471, -4472, and -6633). The DACAs were prepared separately by this firm and are compiled in a separate closing binder volume.
Together with the following documents, the SACAs form the complete perfection package for the collateral securing the obligations under the Credit Agreement:
(a) the Security Agreement, dated as of March 28, 2025;
(b) the Borrower Pledge Agreement, dated as of March 28, 2025, between Nexford Industrial Holdings Inc. and the Collateral Agent, pledging 100% of the equity interests of each domestic subsidiary and 65% of the equity interests of each first-tier foreign subsidiary;
(c) the Holdings Pledge Agreement, dated as of March 28, 2025, between Granite Peak NIH Holdings, LLC and the Collateral Agent, pledging 100% of the equity interests of Nexford Industrial Holdings Inc.;
(d) the Subsidiary Pledge Agreements, dated as of March 28, 2025, between each domestic subsidiary Guarantor and the Collateral Agent, pledging 100% of the equity interests of each of such Guarantor's domestic subsidiaries;
(e) the CFC Holdco Limited Pledge Agreement, dated as of March 28, 2025, between Nexford International Holdings, Inc. and the Collateral Agent, pledging 65% of the equity interests of Nexford Canada Holdings ULC;
(f) the intellectual Property Security Agreement, dated as of March 28, 2025, between the applicable Loan Parties and the Collateral Agent, covering patents, trademarks, copyrights, and related intellectual property;
(g) UCC-1 Financing Statements filed with the Secretary of State of each Grantor's jurisdiction of organization on or about March 28, 2025; and
(h) the DACAs referenced above.
The security interest granted pursuant to the foregoing collateral documents is a first-priority lien on substantially all of the assets of the Borrower and the Guarantors (subject to certain excluded assets and Permitted Liens as defined in the Credit Agreement), subject to the Intercreditor Agreement (First Lien/Unsecured) dated as of March 28, 2025 (the "Intercreditor Agreement"), among Crescent Harbor Bank, N.A. as First Lien Collateral Agent, Pinnacle Trust Company, as trustee under the Indenture dated as of November 15, 2021, for the $250,000,000 aggregate principal amount of 7.250% Senior Unsecured Notes due 2028 (the "Unsecured Notes"), and Nexford Industrial Holdings Inc. The Intercreditor Agreement establishes the relative rights of the holders of first-lien secured obligations and the holders of the Unsecured Notes with respect to the collateral and is not expected to affect the enforceability of the SACAs or the Collateral Agent's rights thereunder.
IV. Filing and Retention
Originals of each executed SACA, together with the original executed counterparts of the signature pages, are to be retained in Volume IV of the closing binder for the Term Loan B transaction. Copies of the executed SACAs have been distributed (or will be distributed promptly following the Closing Date) to the following persons:
(a) Crescent Harbor Bank, N.A. (in its capacities as Administrative Agent and Collateral Agent), Attention: Loan Administration — Nexford Industrial Holdings Inc. Account, 320 Federal Street, Boston, Massachusetts 02110;
(b) Whitfield & Gage LLP (agent's counsel), Attention: Margaret Ashby, 1301 Avenue of the Americas, New York, New York 10019;
(c) Nexford Industrial Holdings Inc., Attention: Priya Mehta, VP, Treasury & Corporate Finance, 1400 Industrial Parkway, Schaumburg, Illinois 60173; and
(d) Each applicable Securities Intermediary, at the address set forth in the applicable SACA.
This memorandum and the compilation of SACAs have been reviewed by Marcus Leung, Senior Associate, Calderwood & Harkness LLP, and approved for inclusion in the closing binder by Claudia Merritt, Partner, Calderwood & Harkness LLP.
Respectfully submitted,
CALDERWOOD & HARKNESS LLP
By: ________
Sophie Tremblay Associate Banking & Finance Group
Reviewed by: Marcus Leung, Senior Associate Approved by: Claudia Merritt, Partner
PART II FORM OF SECURITIES ACCOUNT CONTROL AGREEMENT
SECURITIES ACCOUNT CONTROL AGREEMENT
Dated as of March 28, 2025
among
[GRANTOR]
as Grantor,
[SECURITIES INTERMEDIARY]
as Securities Intermediary,
and
CRESCENT HARBOR BANK, N.A.
as Collateral Agent for the Secured Parties
SECURITIES ACCOUNT CONTROL AGREEMENT
This SECURITIES ACCOUNT CONTROL AGREEMENT (this "Agreement") is entered into as of March 28, 2025, among [GRANTOR], a [jurisdiction] [entity type] (the "Grantor"), [SECURITIES INTERMEDIARY], a [jurisdiction] [entity type] (the "Securities Intermediary"), and CRESCENT HARBOR BANK, N.A., a national banking association, as Collateral Agent for the Secured Parties (as defined below) (in such capacity, together with its successors and assigns in such capacity, the "Collateral Agent").
RECITALS
WHEREAS, reference is made to that certain Credit Agreement dated as of March 28, 2025 (as amended, restated, amended and restated, supplemented, or otherwise modified from time to time, the "Credit Agreement"), among Nexford Industrial Holdings Inc., a Delaware corporation (the "Borrower"), the Guarantors from time to time party thereto, Crescent Harbor Bank, N.A., as Administrative Agent and Collateral Agent, Ironwood Capital Markets, LLC and Northvane Securities, Inc., as Joint Lead Arrangers and Joint Bookrunners, and the Lenders from time to time party thereto, providing for, among other things, a senior secured term loan B facility in an aggregate principal amount of $1,400,000,000 (the "Term Loan B");
WHEREAS, reference is made to that certain Security Agreement dated as of March 28, 2025 (as amended, restated, amended and restated, supplemented, or otherwise modified from time to time, the "Security Agreement"), among the Borrower, the Guarantors from time to time party thereto (the Borrower and such Guarantors being referred to collectively as the "Grantors" under the Security Agreement), and the Collateral Agent, pursuant to which, among other things, the Grantor has granted a first-priority security interest in, among other things, all securities accounts of the Grantor, and all security entitlements and financial assets credited thereto, to the Collateral Agent for the benefit of the Secured Parties, to secure the payment and performance of the Secured Obligations (as defined in the Credit Agreement);
WHEREAS, the Grantor maintains one or more securities accounts with the Securities Intermediary, as more particularly described on Schedule I hereto (each, a "Securities Account" and collectively, the "Securities Accounts"), and the Securities Intermediary carries and maintains such Securities Accounts for the Grantor;
WHEREAS, in order to perfect the security interest granted by the Grantor to the Collateral Agent in and to the Securities Accounts and the security entitlements and financial assets credited thereto, it is necessary for the Collateral Agent to obtain "control" (as defined in Sections 8-106 and 9-106 of the UCC (as defined below)) over the Securities Accounts; and
WHEREAS, the Securities Intermediary has agreed to comply with the terms of this Agreement in order to grant such control to the Collateral Agent;
NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms shall have the following meanings:
"Agreement" has the meaning set forth in the preamble hereto.
"Borrower" has the meaning set forth in the Recitals hereto.
"Collateral Agent" has the meaning set forth in the preamble hereto.
"Credit Agreement" has the meaning set forth in the Recitals hereto.
"Entitlement Order" means a notification communicated to the Securities Intermediary directing transfer or redemption of a financial asset to which the entitlement holder has a security entitlement, as such term is defined in UCC Section 8-102(a)(8).
"Event of Default" means an "Event of Default" as defined in the Credit Agreement.
"Financial Asset" means a "financial asset" as defined in UCC Section 8-102(a)(9), including (a) any security, (b) any obligation of a person or share, participation, or other interest in a person or in property or an enterprise of a person, which is, or is of a type, dealt in or traded on financial markets, or which is recognized in any area in which it is issued or dealt in as a medium for investment, (c) any property that is held by a securities intermediary for another person in a securities account if the securities intermediary has expressly agreed with the other person that the property is to be treated as a financial asset under Article 8 of the UCC, and (d) a credit balance in a securities account.
"Grantor" has the meaning set forth in the preamble hereto.
"Notice of Exclusive Control" has the meaning set forth in Section 4.1 hereof.
"Required Lenders" means the "Required Lenders" as defined in the Credit Agreement.
"Secured Obligations" means the "Secured Obligations" as defined in the Credit Agreement, including, without limitation, all obligations in respect of principal, interest (including post-petition interest, whether or not allowed), premium, fees, costs, charges, expenses, reimbursement obligations, indemnities, guarantees, and all other amounts payable by any Loan Party under or in respect of the Credit Agreement, the Security Agreement, or any other Loan Document.
"Secured Parties" means the "Secured Parties" as defined in the Credit Agreement, including the Administrative Agent, the Collateral Agent, each Lender, and each other holder of Secured Obligations from time to time.
"Securities Account" has the meaning set forth in the Recitals hereto.
"Securities Intermediary" has the meaning set forth in the preamble hereto.
"Security Agreement" has the meaning set forth in the Recitals hereto.
"Security Entitlement" means a "security entitlement" as defined in UCC Section 8-102(a)(17), meaning the rights and property interest of an entitlement holder with respect to a financial asset specified in Part 5 of Article 8 of the UCC.
"Term Loan B" has the meaning set forth in the Recitals hereto.
"UCC" means the Uniform Commercial Code as in effect from time to time in the State of New York; provided that if, by reason of mandatory provisions of law, the perfection, the effect of perfection or non-perfection, or the priority of the security interest of the Collateral Agent in any item of collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of New York, "UCC" means the Uniform Commercial Code as in effect from time to time in such other jurisdiction for purposes of the provisions hereof relating to such perfection, effect of perfection or non-perfection, or priority.
1.2 UCC Definitions. Unless otherwise defined herein, terms used herein that are defined in Article 8 or Article 9 of the UCC (including "entitlement holder," "entitlement order," "financial asset," "securities account," "securities intermediary," "security," and "security entitlement") shall have the respective meanings assigned to such terms in Article 8 or Article 9 of the UCC, as applicable.
1.3 Credit Agreement Definitions. Terms defined in the Credit Agreement that are used but not otherwise defined herein shall have the meanings given to such terms in the Credit Agreement, including without limitation the terms "Administrative Agent," "Collateral Agent," "Event of Default," "Guarantor," "Lender," "Loan Document," "Loan Party," "Required Lenders," "Secured Obligations," and "Secured Parties." In the event of any conflict between the definitions set forth in this Agreement and the definitions set forth in the Credit Agreement, the definitions in the Credit Agreement shall control.
SECTION 2. THE SECURITIES ACCOUNTS
2.1 Identification. The Securities Intermediary hereby confirms that it maintains the Securities Accounts identified on Schedule I hereto for the Grantor, including each account number, account title, description of the account, and account type set forth thereon. The Securities Intermediary further confirms that the Grantor is the "entitlement holder" (as defined in UCC Section 8-102(a)(7)) with respect to each Securities Account and each security entitlement therein. Schedule I hereto sets forth a true, correct, and complete listing of all securities accounts maintained by the Grantor with the Securities Intermediary as of the date hereof.
2.2 Securities Intermediary's Representations. The Securities Intermediary represents and warrants to the Collateral Agent that, as of the date hereof and at all times while this Agreement remains in effect:
(a) the Securities Intermediary is a "securities intermediary" as defined in UCC Section 8-102(a)(14) and, in the ordinary course of its business, maintains securities accounts for others and is acting in that capacity with respect to the Securities Accounts;
(b) each Securities Account listed on Schedule I is a "securities account" as defined in UCC Section 8-501, and the Securities Intermediary treats each such account as a securities account;
(c) all financial assets credited to the Securities Accounts are and will be held by the Securities Intermediary for the Grantor and will be treated as "financial assets" under UCC Section 8-102(a)(9); the Securities Intermediary has not entered into, and will not enter into, any agreement with the Grantor to treat any item credited to the Securities Accounts other than as a financial asset;
(d) the Securities Intermediary has credited to the Securities Accounts all financial assets received by it for credit to such accounts and will continue to do so; and
(e) all property delivered to the Securities Intermediary by the Grantor or at the Grantor's direction will be promptly credited to the applicable Securities Account and treated as a financial asset.
2.3 No Other Control Agreements. The Securities Intermediary represents and warrants to the Collateral Agent that, as of the date hereof, it has not entered into any other control agreement or similar agreement with any other person that purports to grant "control" (within the meaning of UCC Sections 8-106 and 9-106) over any Securities Account, any security entitlement carried therein, or any financial asset credited thereto, other than a certain Securities Account Control Agreement dated as of November 22, 2021, in favor of Atlas Meridian Bank, N.A., as collateral agent (the "Prior Control Agreement"), which Prior Control Agreement is being terminated simultaneously with the effectiveness of this Agreement pursuant to a termination notice delivered by Atlas Meridian Bank, N.A. to the Securities Intermediary on or prior to the date hereof. The Securities Intermediary further agrees that it shall not enter into any control agreement or similar agreement with any person (other than the Collateral Agent) with respect to the Securities Accounts without the prior written consent of the Collateral Agent.
SECTION 3. CONTROL
3.1 Agreement to Comply with Entitlement Orders. The Securities Intermediary hereby agrees that it will comply with all entitlement orders originated by the Collateral Agent directing the transfer, redemption, liquidation, or disposition of any financial asset credited to, or any security entitlement carried in, any Securities Account, without further consent of the Grantor or any other person. The Securities Intermediary shall promptly execute any such entitlement order in accordance with the instructions set forth therein, including instructions to deliver financial assets to any account or person designated by the Collateral Agent, to sell, exchange, or liquidate financial assets, or to transfer the proceeds of any such sale, exchange, or liquidation to an account designated by the Collateral Agent. The Grantor hereby consents to the Securities Intermediary's compliance with entitlement orders originated by the Collateral Agent, and the Grantor agrees that the Securities Intermediary shall have no liability to the Grantor for complying with such entitlement orders in accordance with the terms of this Agreement.
3.2 Grantor's Rights Prior to Exclusive Control Notice. Until the Securities Intermediary receives a Notice of Exclusive Control from the Collateral Agent in accordance with Section 4 hereof, the Grantor shall be entitled to direct the Securities Intermediary with respect to the Securities Accounts, including the giving of entitlement orders and instructions regarding the purchase, sale, exchange, transfer, trading, redemption, and withdrawal of financial assets credited to the Securities Accounts and the investment and reinvestment of funds credited thereto, in each case in accordance with the terms of any applicable account agreement between the Grantor and the Securities Intermediary and subject to the requirements and limitations of the Credit Agreement and the Security Agreement. The Securities Intermediary shall comply with such entitlement orders and instructions from the Grantor unless and until a Notice of Exclusive Control is received by the Securities Intermediary in accordance with Section 4. For the avoidance of doubt, the Collateral Agent's rights under Section 3.1 shall be exercisable at all times, including prior to the delivery of a Notice of Exclusive Control.
3.3 Acknowledgment. The Securities Intermediary hereby acknowledges and agrees that:
(a) the Collateral Agent has "control" (within the meaning of UCC Sections 8-106(d) and 9-106(a)) over each Securities Account and all security entitlements carried therein and financial assets credited thereto;
(b) this Agreement satisfies the requirements for obtaining "control" of a securities account and the security entitlements therein under UCC Section 9-106 and constitutes a valid and effective agreement among the Securities Intermediary, the Grantor, and the Collateral Agent pursuant to which the Securities Intermediary has agreed to comply with entitlement orders originated by the Collateral Agent without further consent by the Grantor;
(c) the Securities Intermediary's obligations under this Agreement with respect to entitlement orders originated by the Collateral Agent are not conditioned upon the Collateral Agent's or any other person's presentation of evidence that an Event of Default has occurred or is continuing, or upon any other condition, other than as expressly set forth in Section 4 hereof; and
(d) the Collateral Agent's security interest in the Securities Accounts, and the security entitlements and financial assets therein, has been perfected by control as of the date of this Agreement.
SECTION 4. NOTICE OF EXCLUSIVE CONTROL
4.1 Delivery of Notice. The Collateral Agent may at any time deliver a written notice to the Securities Intermediary (a "Notice of Exclusive Control"), substantially in the form of Exhibit A hereto, stating that the Collateral Agent is exercising exclusive control over the Securities Accounts. A Notice of Exclusive Control shall be effective upon receipt by the Securities Intermediary. The Securities Intermediary shall be entitled to rely on any Notice of Exclusive Control that purports to have been given by or on behalf of the Collateral Agent without investigation or inquiry as to the authorization, validity, or authenticity of such notice, and the Securities Intermediary shall have no responsibility or liability for acting in accordance with such notice.
4.2 Effect of Notice. Upon receipt of a Notice of Exclusive Control, the Securities Intermediary shall:
(a) immediately cease complying with any and all entitlement orders, instructions, directions, or requests from the Grantor or any person acting on behalf of the Grantor with respect to the Securities Accounts, the security entitlements therein, and the financial assets credited thereto;
(b) comply solely and exclusively with entitlement orders, instructions, directions, and requests originated by the Collateral Agent (or any person designated in writing by the Collateral Agent) with respect to the Securities Accounts, the security entitlements therein, and the financial assets credited thereto; and
(c) hold all financial assets credited to, and security entitlements carried in, the Securities Accounts for the exclusive benefit of the Collateral Agent (on behalf of the Secured Parties) and shall not release, transfer, dispose of, or permit the withdrawal of any such financial assets or security entitlements except upon the instruction of the Collateral Agent.
The Grantor acknowledges and agrees that, upon receipt of a Notice of Exclusive Control by the Securities Intermediary, the Grantor shall have no further right to give entitlement orders, instructions, or directions with respect to the Securities Accounts, and the Securities Intermediary shall have no obligation to act upon any entitlement order, instruction, or direction from the Grantor until such time as the Collateral Agent delivers a written revocation of the Notice of Exclusive Control to the Securities Intermediary.
4.3 Conditions. The Collateral Agent shall deliver a Notice of Exclusive Control only upon the occurrence and during the continuance of an Event of Default under the Credit Agreement (including, for the avoidance of doubt, any Event of Default giving rise to the application of the default rate of interest equal to an additional 200 basis points per annum above the otherwise applicable rate, as set forth in Section 2.13(c) of the Credit Agreement), as directed by the Required Lenders in accordance with Section 8.02 of the Credit Agreement. The Collateral Agent's delivery of a Notice of Exclusive Control shall constitute a representation by the Collateral Agent to the Securities Intermediary that an Event of Default has occurred and is continuing under the Credit Agreement and that the Collateral Agent has been directed by the Required Lenders to exercise exclusive control over the Securities Accounts. The Securities Intermediary shall be entitled to rely on any such representation without investigation or independent verification and shall have no liability to any person for so relying.
SECTION 5. SUBORDINATION OF LIENS; PRIORITY
5.1 Subordination. The Securities Intermediary hereby subordinates, and agrees not to assert, any security interest, lien, encumbrance, claim, or right of setoff that the Securities Intermediary may now or hereafter have in or with respect to the Securities Accounts, the security entitlements therein, and the financial assets credited thereto, to the security interest of the Collateral Agent in such Securities Accounts, security entitlements, and financial assets; provided, however, that such subordination shall not apply to:
(a) the Securities Intermediary's customary fees, commissions, and charges for maintaining and servicing the Securities Accounts, including account maintenance fees, transaction charges, and wire transfer fees, in each case arising in the ordinary course of the Securities Intermediary's business and in accordance with its published fee schedules or as otherwise agreed in writing between the Securities Intermediary and the Grantor; and
(b) amounts advanced by the Securities Intermediary in connection with the settlement of securities transactions effected through the Securities Accounts in the ordinary course of the Securities Intermediary's business, including advances to cover failed trades, settlement shortfalls, and similar obligations arising from the clearance and settlement process.
5.2 No Setoff. The Securities Intermediary agrees that it will not exercise any right of setoff, banker's lien, recoupment, deduction, or other similar right against the Securities Accounts, the security entitlements therein, or the financial assets credited thereto, in each case without the prior written consent of the Collateral Agent, other than with respect to the exceptions set forth in clauses (a) and (b) of Section 5.1 above. The Securities Intermediary acknowledges that any exercise of a right of setoff or lien in violation of this Section 5.2 would be adverse to the Collateral Agent's security interest and would constitute a breach of this Agreement.
SECTION 6. STATEMENTS AND NOTICES
6.1 Account Statements. The Securities Intermediary shall send copies of all account statements, trade confirmations, transaction reports, and notices (including notices of margin calls, if applicable, notices of corporate actions, and notices of any changes to the Securities Accounts or the terms thereof) regarding the Securities Accounts to both the Grantor and the Collateral Agent at their respective addresses set forth in Schedule II hereto, or at such other addresses as the Grantor or the Collateral Agent may specify from time to time in writing to the Securities Intermediary.
6.2 Frequency. Account statements with respect to the Securities Accounts shall be delivered (a) monthly, within fifteen (15) calendar days following the end of each calendar month, and (b) at such other times and with such frequency as the Collateral Agent may from time to time reasonably request. In addition, the Securities Intermediary shall promptly notify the Collateral Agent in writing of (i) any legal process (including any attachment, garnishment, levy, or similar proceeding) served on the Securities Intermediary with respect to any Securities Account or any financial asset or security entitlement therein, (ii) any other claim or notice asserting a lien, encumbrance, or adverse claim on or against any Securities Account, and (iii) any change in the name, address, or other identifying information of the Grantor or the Securities Account.
SECTION 7. REPRESENTATIONS AND WARRANTIES OF THE SECURITIES INTERMEDIARY
The Securities Intermediary represents and warrants to the Collateral Agent and the Grantor as follows:
7.1 Organization and Authority. The Securities Intermediary is duly organized, validly existing, and in good standing under the laws of its jurisdiction of organization. The Securities Intermediary has full power and authority to enter into this Agreement and to perform its obligations hereunder. The execution, delivery, and performance of this Agreement by the Securities Intermediary have been duly authorized by all necessary corporate or other organizational action on the part of the Securities Intermediary and do not require any further approval, consent, or authorization.
7.2 Jurisdiction. The Securities Intermediary's jurisdiction, as determined under UCC Section 8-110(e) (i.e., the jurisdiction of the office of the Securities Intermediary at which the entitlement holder's securities account is maintained, as identified in an account statement, in the account agreement, or as otherwise agreed between the Securities Intermediary and the entitlement holder), is the State identified on Schedule I hereto. The Securities Intermediary shall not change such jurisdiction without the prior written consent of the Collateral Agent.
7.3 Enforceability. This Agreement constitutes the legal, valid, and binding obligation of the Securities Intermediary, enforceable against the Securities Intermediary in accordance with its terms, except as enforceability may be limited by (a) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer, fraudulent conveyance, or other similar laws affecting creditors' rights generally and (b) general principles of equity (whether considered in a proceeding in equity or at law), including concepts of materiality, reasonableness, good faith, and fair dealing.
7.4 No Conflicts. No court order, judgment, decree, injunction, statute, rule, regulation, or other legal prohibition prohibits the Securities Intermediary from entering into this Agreement or performing any of its obligations hereunder. The execution, delivery, and performance of this Agreement by the Securities Intermediary do not violate or conflict with any provision of the Securities Intermediary's charter, bylaws, operating agreement, or other organizational documents, or any law, rule, or regulation applicable to the Securities Intermediary, or any agreement or instrument to which the Securities Intermediary is a party or by which it is bound.
SECTION 8. REPRESENTATIONS AND WARRANTIES OF THE GRANTOR
The Grantor represents and warrants to the Collateral Agent and the Securities Intermediary as follows:
8.1 Power and Authority. The Grantor has full power and authority to enter into this Agreement and to grant to the Collateral Agent control over the Securities Accounts and the security entitlements and financial assets therein. The execution, delivery, and performance of this Agreement by the Grantor have been duly authorized by all necessary corporate, limited liability company, partnership, or other organizational action on the part of the Grantor, and no further approval, consent, authorization, or other action by or filing with any person (including any governmental authority) is required for the Grantor to execute and deliver this Agreement or to grant control over the Securities Accounts to the Collateral Agent.
8.2 No Conflict. The execution, delivery, and performance of this Agreement by the Grantor do not and will not (a) violate any provision of the Grantor's certificate or articles of incorporation, bylaws, certificate of formation, operating agreement, partnership agreement, or other organizational documents, (b) violate any law, statute, rule, regulation, judgment, order, or decree applicable to the Grantor, (c) result in a breach of, constitute a default under, or give rise to a right of termination, cancellation, or acceleration under any material agreement, instrument, or obligation to which the Grantor is a party or by which the Grantor or its properties may be bound, or (d) result in the creation or imposition of any lien, charge, or encumbrance on any property of the Grantor, other than the security interest of the Collateral Agent created hereunder and under the Security Agreement.
8.3 Accuracy of Schedule I. Schedule I hereto accurately identifies all securities accounts maintained by the Grantor with the Securities Intermediary as of the date hereof, including each account number, account title, and account type. The Grantor does not maintain any securities account with the Securities Intermediary that is not listed on Schedule I.
8.4 No Prior Control. The Grantor has not granted "control" (within the meaning of UCC Sections 8-106 and 9-106) over any Securities Account, or any security entitlement or financial asset therein, to any person other than the Collateral Agent, except for the Prior Control Agreement in favor of Atlas Meridian Bank, N.A., which Prior Control Agreement is being terminated concurrently with the effectiveness of this Agreement. The Grantor has not entered into, and will not enter into, any agreement with the Securities Intermediary that is inconsistent with this Agreement or that would impair the Collateral Agent's control over the Securities Accounts.
SECTION 9. COVENANTS
9.1 Account Changes. The Grantor shall not, without the prior written consent of the Collateral Agent:
(a) close any Securities Account listed on Schedule I hereto; or
(b) open any new securities account with the Securities Intermediary;
provided, however, that if permitted under the terms of the Credit Agreement (including Section 6.13 thereof), the Grantor may open a new securities account with the Securities Intermediary upon the prompt (and in any event within ten (10) business days) delivery of a supplemental Securities Account Control Agreement covering such new account in form and substance reasonably satisfactory to the Collateral Agent, together with an updated Schedule I reflecting such new account.
9.2 No Other Control. The Grantor shall not grant any other person "control" (within the meaning of UCC Sections 8-106 and 9-106) over any Securities Account, or any security entitlement or financial asset therein, without the prior written consent of the Collateral Agent. Any purported grant of control in violation of this Section 9.2 shall be void and of no force or effect.
9.3 Account Identification. The Securities Intermediary shall not change the name, title, or account number of any Securities Account, or transfer any Securities Account to a different office or jurisdiction of the Securities Intermediary, without providing at least thirty (30) days' prior written notice to the Collateral Agent. Any such change or transfer shall not affect the validity or enforceability of this Agreement or the Collateral Agent's control over the affected Securities Account.
SECTION 10. TERMINATION
10.1 Termination Events. This Agreement shall remain in full force and effect until the earliest to occur of:
(a) the date on which the Collateral Agent delivers a written notice of termination, substantially in the form of Exhibit B hereto, to the Securities Intermediary and the Grantor, stating that this Agreement is terminated;
(b) the date on which all Secured Obligations have been indefeasibly paid in full in cash (other than contingent indemnification obligations for which no claim has been asserted), all commitments under the Credit Agreement have been permanently terminated, and all letters of credit (if any) have expired or been terminated or fully cash collateralized; or
(c) the date on which the Grantor's obligations under the Security Agreement have been released in accordance with the terms thereof and the Credit Agreement (including, without limitation, upon a release of the Grantor as a Guarantor in connection with a disposition of equity interests permitted under the Credit Agreement).
10.2 Effect of Termination. Upon termination of this Agreement in accordance with Section 10.1, the Collateral Agent's control over the Securities Accounts shall cease, and the Securities Intermediary shall thereafter follow only the instructions and entitlement orders of the Grantor with respect to the Securities Accounts, the security entitlements therein, and the financial assets credited thereto. The termination of this Agreement shall not affect any rights, obligations, or liabilities of any party that accrued prior to such termination.
SECTION 11. INDEMNIFICATION
11.1 Indemnification by the Grantor. The Grantor agrees to indemnify and hold harmless the Securities Intermediary and its directors, officers, employees, agents, and affiliates (each, an "Indemnified Party") from and against any and all claims, losses, liabilities, damages, judgments, penalties, costs, and expenses (including reasonable and documented out-of-pocket attorneys' fees and disbursements) arising out of or in connection with this Agreement, including any claim, action, or proceeding arising from the Securities Intermediary's compliance with entitlement orders from the Collateral Agent or the Securities Intermediary's performance of its obligations hereunder; provided, however, that no Indemnified Party shall be entitled to indemnification under this Section 11.1 to the extent that such claims, losses, liabilities, damages, judgments, penalties, costs, or expenses are determined by a court of competent jurisdiction in a final, non-appealable judgment to have resulted directly from such Indemnified Party's gross negligence, willful misconduct, or material breach of this Agreement. The obligations of the Grantor under this Section 11.1 shall survive the termination of this Agreement.
11.2 No Obligation of the Collateral Agent. The Collateral Agent shall have no obligation to the Securities Intermediary, financial or otherwise, other than as expressly set forth in this Agreement. Without limiting the generality of the foregoing, the Collateral Agent shall not be obligated to pay any fees, charges, or expenses of the Securities Intermediary in connection with the maintenance of the Securities Accounts or the performance of the Securities Intermediary's obligations hereunder, all of which shall be the responsibility of the Grantor.
SECTION 12. STANDARD OF CARE; LIMITATION OF LIABILITY
12.1 Standard of Care. The Securities Intermediary shall maintain the Securities Accounts and hold the financial assets and security entitlements therein with the same degree of care that it exercises with respect to its own property and accounts and those of its other customers, but in no event less than the degree of care that a reasonably prudent securities intermediary would exercise under the circumstances.
12.2 Limitation of Liability — Securities Intermediary. The Securities Intermediary shall not be liable for any losses, diminution in value, or other adverse changes in the value of financial assets held in or credited to the Securities Accounts resulting from market fluctuations, investment risk, or other factors beyond the Securities Intermediary's control, except to the extent that such losses are caused directly by the Securities Intermediary's gross negligence or willful misconduct, as determined by a court of competent jurisdiction in a final, non-appealable judgment. The Securities Intermediary shall have no responsibility or liability for the sufficiency, completeness, accuracy, or validity of any entitlement order, notice, instruction, or other communication delivered to it by the Collateral Agent or the Grantor, and shall be entitled to rely upon any such entitlement order, notice, instruction, or communication that it reasonably believes to be genuine and to have been given by or on behalf of the Collateral Agent or the Grantor, as applicable.
12.3 Limitation of Liability — Collateral Agent. The Collateral Agent shall have no liability to the Grantor, the Securities Intermediary, or any other person for any action taken or omitted to be taken by the Collateral Agent in good faith in the exercise of its rights and remedies under this Agreement, including any action taken upon the direction of the Required Lenders. Without limiting the foregoing, the Collateral Agent shall not be responsible for the solvency, financial condition, or creditworthiness of the Securities Intermediary.
SECTION 13. SUCCESSORS AND ASSIGNS
13.1 Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. No party may assign or transfer its rights or obligations under this Agreement except as expressly provided in this Section 13.
13.2 Assignment by Collateral Agent. The Collateral Agent may assign its rights and obligations under this Agreement to any successor Collateral Agent appointed under the Credit Agreement (including any successor appointed pursuant to Section 9.06 of the Credit Agreement) without the consent of the Grantor or the Securities Intermediary. The Collateral Agent shall provide written notice of any such assignment to the Grantor and the Securities Intermediary promptly upon the effectiveness thereof. Upon such assignment, all references herein to the "Collateral Agent" shall be deemed to refer to such successor Collateral Agent, and such successor Collateral Agent shall be entitled to all of the rights and benefits of the Collateral Agent hereunder.
13.3 Assignment by Grantor. The Grantor may not assign or transfer its rights or obligations under this Agreement without the prior written consent of the Collateral Agent, and any purported assignment or transfer in violation of this Section 13.3 shall be null and void and of no force or effect.
SECTION 14. AMENDMENTS AND WAIVERS
14.1 Amendments. This Agreement may be amended, supplemented, restated, or otherwise modified only by a written instrument duly executed by all parties hereto. No amendment, supplement, restatement, or modification of this Agreement shall be effective unless it is in writing and signed by the Grantor, the Securities Intermediary, and the Collateral Agent.
14.2 Waivers. No waiver of any provision of this Agreement or consent to any departure therefrom shall be effective unless it is in writing and signed by the party or parties making such waiver or granting such consent. No failure or delay by any party in exercising any right, power, or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power, or remedy preclude any other or further exercise thereof or the exercise of any other right, power, or remedy. The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights or remedies provided by law.
SECTION 15. GOVERNING LAW
15.1 Governing Law. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of New York (including Sections 5-1401 and 5-1402 of the New York General Obligations Law), without regard to the conflict of laws principles thereof that would require the application of the laws of any other jurisdiction.
15.2 Securities Intermediary's Jurisdiction. For purposes of UCC Section 8-110(e) (determining the law governing the rights and duties of the Securities Intermediary and the entitlement holder's security entitlements), the Securities Intermediary's jurisdiction is the State specified on Schedule I hereto. The Securities Intermediary agrees that it will not change its jurisdiction (as determined under UCC Section 8-110(e)) with respect to the Securities Accounts without the prior written consent of the Collateral Agent and at least thirty (30) days' prior written notice to the Collateral Agent and the Grantor.
SECTION 16. JURISDICTION AND SERVICE OF PROCESS
16.1 Submission to Jurisdiction. Each party hereto irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of the courts of the State of New York sitting in the Borough of Manhattan, the City of New York, and the United States District Court for the Southern District of New York, and any appellate court from any thereof, in any action, suit, or proceeding arising out of or relating to this Agreement. Each party agrees that a final judgment in any such action, suit, or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
16.2 Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY HERETO CERTIFIES AND ACKNOWLEDGES THAT (A) 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, (B) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) EACH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (D) EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 16.2.
16.3 Service of Process. Each party hereto irrevocably consents to service of process in the manner provided for notices in Section 17 hereof. Nothing in this Agreement shall affect the right of any party to serve process in any other manner permitted by applicable law.
SECTION 17. NOTICES
17.1 Manner of Delivery. All notices, requests, demands, consents, instructions, and other communications required or permitted to be given under this Agreement shall be in writing and shall be delivered to the parties at their respective addresses set forth in Schedule II hereto (or at such other address as a party may designate by written notice to the other parties in accordance with this Section 17). Notices may be delivered by (a) personal delivery (including by messenger or courier service), (b) nationally recognized overnight courier service (with charges prepaid), (c) certified mail, return receipt requested, postage prepaid, or (d) electronic mail (with confirmation of receipt); provided that any Notice of Exclusive Control or notice of termination under Section 10 shall be delivered by personal delivery or nationally recognized overnight courier service and shall not be delivered solely by electronic mail.
17.2 Effectiveness of Notices. Notices shall be deemed to have been duly given and shall be effective (a) upon receipt, if delivered by personal delivery (including by messenger or courier service), (b) upon receipt, if sent by nationally recognized overnight courier service, (c) three (3) business days after the date of mailing, if sent by certified mail, return receipt requested, postage prepaid, or (d) upon confirmation of receipt by the recipient (which may include electronic confirmation of delivery by the recipient's email system, but shall not include automated "out of office" or similar responses), if sent by electronic mail.
SECTION 18. COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, and all of which, when taken together, shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this Agreement by electronic means (including by portable document format (.pdf), Tagged Image File Format (.tif), or other electronic imaging means) shall be effective as delivery of a manually executed original counterpart thereof.
SECTION 19. CONFLICT WITH OTHER AGREEMENTS
19.1 Priority of this Agreement. In the event of any conflict or inconsistency between the terms and provisions of this Agreement and the terms and provisions of any other agreement between the Grantor and the Securities Intermediary (including any account agreement, brokerage agreement, custodial agreement, investment management agreement, or similar agreement relating to the Securities Accounts), the terms and provisions of this Agreement shall prevail and control to the extent of such conflict or inconsistency. The Grantor and the Securities Intermediary acknowledge and agree that this Agreement supersedes any prior agreement, understanding, or arrangement between them to the extent inconsistent with this Agreement.
19.2 No Inconsistent Amendments. The Securities Intermediary agrees that it will not amend, supplement, restate, or otherwise modify any account agreement, brokerage agreement, custodial agreement, or other agreement with the Grantor relating to the Securities Accounts in a manner that would be inconsistent with this Agreement, or that would impair or diminish the rights of the Collateral Agent hereunder, without the Collateral Agent's prior written consent.
SECTION 20. ENTIRE AGREEMENT
This Agreement, together with the Security Agreement and the Credit Agreement (and the other Loan Documents referred to therein), constitutes the entire agreement among the parties hereto with respect to the subject matter hereof and supersedes all prior agreements, arrangements, and understandings, both written and oral, among the parties with respect to such subject matter. No party shall be bound by, and each party specifically objects to, any term, condition, or other provision that is different from or in addition to the provisions of this Agreement, whether or not such term, condition, or provision would alter or supplement this Agreement, notwithstanding any trade custom, course of dealing, or course of performance.
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IN WITNESS WHEREOF, the parties hereto have caused this Securities Account Control Agreement to be duly executed and delivered by their respective duly authorized officers or representatives as of the date first written above.
GRANTOR:
[NAME OF GRANTOR ENTITY]
By: ________
Name:
Title:
SECURITIES INTERMEDIARY:
[NAME OF SECURITIES INTERMEDIARY]
By: ________
Name:
Title:
COLLATERAL AGENT:
CRESCENT HARBOR BANK, N.A., as Collateral Agent for the Secured Parties
By: ________
Name:
Title:
SCHEDULE I
SECURITIES ACCOUNTS
SCHEDULE II
NOTICE ADDRESSES
Grantor:
[Entity Name] c/o Nexford Industrial Holdings Inc. 1400 Industrial Parkway Schaumburg, Illinois 60173
Attention: Priya Mehta, VP, Treasury & Corporate Finance
Telephone: (847) 555-0142
Email: priya.mehta@nexfordindustrial.com
with a copy to: