Exhibit 10.21
CONTROL AGREEMENT
REGARDING SECURITY INTEREST IN INVESTMENT PROPERTY
This Agreement, made as of the 16th day of December, 2005, by and between
First National Bank of Omaha, a national banking association established in
Omaha Nebraska ("BANK"), Red Trail Energy, LLC, a North Dakota limited liability
company ("CUSTOMER"), and First National Capital Markets, Inc. ("COMPANY"), a
Nebraska corporation with offices at 0000 Xxxxx Xx., Xxxxx, Xxxxxxxx.
RECITALS
A. CUSTOMER is indebted to BANK as the result of one or more promissory
notes, or other evidence of indebtedness. Such indebtedness, whether resulting
from a promissory note, guaranty, letter of credit, or any other document or
cause, is herein called an "OBLIGATION".
B. For purposes of this agreement, all capitalized terms not otherwise
defined herein have the same meanings as defined in Nebraska Uniform Commercial
Code.
C. CUSTOMER has provided BANK security interests in the COLLATERAL (as
defined below) and CUSTOMER desires to provide BANK with CONTROL (as such term
is defined in Nebraska Uniform Commercial Code Section 8-106) over the
COLLATERAL (as defined below).
Now, therefore, the parties hereto agree as follows:
1. The COMPANY represents and agrees that: (i) it has established and is
maintaining on its books and records the account number 00000000 in the name of
BORROWER, (said account, together with any replacements thereof or substitutions
therefore, collectively the ACCOUNT) and (ii) the ACCOUNT is a "securities
account" (within the meaning of Section 8-501(a) of the UCC) in respect of
which the COMPANY is a "securities intermediary" (within the meaning of Section
8-102(a)(14) of the UCC) and the BANK is the "entitlement holder" (within the
meaning of Section 8-102(a)(7) of the UCC).
2. The COMPANY hereby agrees that each item of property (whether cash, a
security, an instrument or any other property whatsoever) credited to the
ACCOUNT shall be treated as FINANCIAL ASSETS under Article 8 of the UCC (the
ACCOUNT and the FINANCIAL ASSETS credited thereto shall be hereafter referred to
as the COLLATERAL).
3. The COMPANY agrees that, if there is any conflict between this Agreement
and any other agreement relating to the ACCOUNT, the provisions of this
Agreement shall control.
4. COMPANY agrees that it will comply with INSTRUCTIONS and ENTITLEMENT
ORDERS originated by BANK as to the COLLATERAL, without further consent of
CUSTOMER. Until otherwise instructed, CUSTOMER is to receive any cash dividends
attributable to the COLLATERAL.
5. Notwithstanding the provisions of paragraph 4, above, CUSTOMER retains
the right to originate instructions to COMPANY as to substitutions for the
COLLATERAL, until BANK provides written notice to COMPANY of a default by
CUSTOMER as to any OBLIGATION, following receipt of which only BANK may
originate instructions to COMPANY as to the COLLATERAL. After the Company
receives notice from the BANK that a default has occurred, the Company agrees
that it will no longer comply with ENTITLEMENT ORDERS originated by, or other
directions or instructions received from, the CUSTOMER with respect to the
ACCOUNT or cash, securities or other property credited thereto.
6. This Agreement is executed in Nebraska and is subject to the laws of
Nebraska, including the Nebraska Uniform Commercial Code. This Agreement is
effective until terminated by a written notice executed by BANK delivered to
COMPANY, or until the COLLATERAL is no longer registered to or owned by
CUSTOMER.
7. COMPANY represents that it has not and covenants that it will not agree
to comply with any instructions or entitlement orders with respect to the
ACCOUNT other than as set forth herein.
IN WITNESS WHEREOF, the parties have executed this agreement as of the date
first set forth above.
BANK
First National Bank of Omaha
By /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx, Commercial Loan
Officer
COMPANY
First National Capital Markets, Inc.
By /s/ XXXXX XXXX
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XXXXX XXXX
Its: President
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CUSTOMER
Red Trail Energy, LLC
By /s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx
Title: President
And
By /s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx
Title: Treasurer
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