THIRD AMENDED AND RESTATED SECURITY AGREEMENT This Third Amended and Restated Security Agreement (“Agreement”), dated as of January 31, 2024, is between CARDINAL ETHANOL, LLC, an Indiana limited liability company (the “Debtor’), and FIRST NATIONAL...
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THIRD AMENDED AND RESTATED SECURITY AGREEMENT This Third Amended and Restated Security Agreement (“Agreement”), dated as of January 31, 2024, is between CARDINAL ETHANOL, LLC, an Indiana limited liability company (the “Debtor’), and FIRST NATIONAL BANK OF OMAHA, a national banking association (the “Secured Party”). WHEREAS, the Debtor and Cardinal Colwich, LLC, as Borrowers, have entered into a Second Amended and Restated Construction Loan Agreement dated of even date with this Agreement (as amended, restated and in effect from time to time, the “Loan Agreement”), with the Secured Party, pursuant to which the Secured Party, subject to the terms and conditions contained therein, is to make the Loans available to or otherwise to extend credit to the Borrowers. WHEREAS, it is a condition precedent to the Secured Party's extension of the Obligations (as defined below) to the Borrowers that the Debtor execute and deliver to the Secured Party a security agreement in substantially the form hereof; and WHEREAS, the Debtor wishes to grant a security interest in favor of the Secured Party as herein provided. NOW, THEREFORE, in consideration of the promises contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. Definitions. All capitalized terms used herein without definitions shall have the respective meanings provided therefor in the Loan Agreement. The term “State,” as used herein, means the State of Nebraska. All terms defined in the Uniform Commercial Code of the State and used herein shall have the same definitions herein as specified therein. However, if a term is defined in Article 9 of the Uniform Commercial Code of the State differently than in another Article of the Uniform Commercial Code of the State, the term has the meaning specified in Article 9. The term “Obligations,” as used herein, means all of the indebtedness, obligations and liabilities of the Borrowers to the Secured Party, including, but not limited to, those under the Loans, Loan Agreement, Debtor’s Guaranty, and the other Loan Documents and under any letter of credit documentation, and under any contractual obligations, of every kind, nature or description, individually or collectively, whether direct or indirect, joint or several, absolute or contingent, primary or secondary, due or to become due, now existing or hereafter arising, whether provided for under or in respect of the Loan Agreement or otherwise or under any promissory notes or other instruments or agreements executed and delivered pursuant thereto or in connection therewith or this Agreement or otherwise, all Debt and obligations of the Debtor to the Secured Party under any Financial Instrument Agreement, and Banking Services Obligations, and the term “Event of Default,” as used herein, means the failure of the Borrowers to pay or perform any of the Obligations as and when due to be paid or performed under the terms of the Loan Agreement and the other Loan Documents and shall also have the meaning given to such term in the Loan Agreement or any other Loan Document.
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Agreement, any rights, remedies, obligations, or duties hereunder, or the performance or enforcement hereof or thereof, may be brought in the courts of the State or any federal court sitting therein and consents to the non-exclusive jurisdiction of such court and to service of process in any such suit being made upon the Debtor by mail at the address specified in the notice provision of the Loan Agreement. The Debtor hereby waives any objection that it may now or hereafter have to the venue of any such suit or any such court or that such suit is brought in an inconvenient court. 23. Waiver of Jury Trial THE DEBTOR WAIVES ITS RIGHT TO A JURY TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS AGREEMENT, ANY RIGHTS, REMEDIES, OBLIGATIONS, OR DUTIES HEREUNDER, OR THE PERFORMANCE OR ENFORCEMENT HEREOF OR THEREOF. Except as prohibited by law, the Debtor waives any right which it may have to claim or recover in any litigation referred to in the preceding sentence any special, exemplary, punitive or consequential damages or any damages other than, or in addition to, actual damages. The Debtor (i) certifies that neither the Secured Party nor any representative, agent or attorney of the Secured Party has represented, expressly or otherwise, that the Secured Party would not, in the event of litigation, seek to enforce the foregoing waivers or other waivers contained in this Agreement, and (ii) acknowledges that, in entering into the Loan Agreement and the other Loan Documents to which the Secured Party is a party, the Secured Party is relying upon, among other things, the waivers and certifications contained in this Section 23. 24. Miscellaneous. The headings of each section of this Agreement are for convenience only and shall not define or limit the provisions thereof. This Agreement and all rights and obligations hereunder shall be binding upon the Debtor and its respective successors and assigns, and shall inure to the benefit of the Secured Party and its successors and assigns. If any term of this Agreement shall be held to be invalid, illegal or unenforceable, the validity of all other terms hereof shall in no way be affected thereby, and this Agreement shall be construed and be enforceable as if such invalid, illegal or unenforceable term had not been included herein. The Debtor acknowledges receipt of a copy of this Agreement. 25. Termination. If the Borrowers shall fully and finally pay to the Secured Party the Loans and the Secured Party's Revolving Credit Commitments and Declining Revolving Credit Commitments terminate at the time and in the manner provided for in the Loan Agreement and the Borrowers are not in default under the terms of the Loan Agreement or any other Loan Document, then the security interest granted in this Agreement shall terminate, and the security interests in the Collateral created by this Agreement shall be released at the cost of the Debtor. 26. | Amended and Restated Security Agreement; Liens Unimpaired. This Agreement amends, restates and replaces in its entirety the Security Agreement, dated as of December 19, 2006, the First Amended and Restated Security Agreement dated on or about February 14, 2012, and the Second Amended and Restated Security Agreement dated June 10, 2013, each between the Secured Party and the Borrower, as so amended and as otherwise in effect immediately prior to the date hereof (collectively, the "Existing Security Agreement"). It is the intention and understanding of the parties that (a) all security interests and other Liens arising under or evidenced by the Existing Security Agreement shall remain in full force and effect and shall 16
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secure the Obligations and this Agreement is not a novation of the Existing Security Agreement, and (b) the priority of all such security interests and other Liens shall not be impaired by the execution, delivery or performance of this Agreement or the other Loan Documents. All Uniform Commercial Code financing statements and other lien perfection and similar documents relating to the Existing Security Agreement or the security interests or other Liens arising thereunder or evidenced thereby shall remain in full force and effect and shall act to perfect the Secured Party's security interest in the Collateral described therein. [SIGNATURE PAGE FOLLOWS] 17
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CERTIFICATE OF ACKNOWLEDGMENT STATE OF INDIANA ) ) ss. county oF Lando lpn ) Before me, the undersigned, a Notary Public in and for the county aforesaid, on thisS0th day of January, 2024, personally appeared _Williom Darte , to me known personally, and who, being by me duly sworn, deposes and says that he is the CFD of Cardinal Xxxxxxx, LLC, and that said instrument was signed on behalf of said limited liability company by authority of its Board of Directors, and said officer acknowledged said instrument to be the free act and deed of said limited liability company. OO4,~ Ror Notary Public My commission expires: Xxxxxxxx Xxxxxxxx Notary Public Seal State‘of xxxxxxx Xxxxxxxx Xxxx! Z/ 22/ ZOZA ( Commission ¢ NPO731338 My Commission Expires 02/22/2029 My County of Residence is: Rand ° ip a 19
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SCHEDULE A Locations/Commercial Tort Claims I. Debtor Locations: 0000 Xxxxx 000 X Xxxxx Xxxx, Xxxxxxx 00000 XX. Commercial Tort Claims: None