FIRST AMENDED AND RESTATED SECURITY AGREEMENT This First Amended and Restated Security Agreement (“Agreement”), dated as of January 31, 2024, is between CARDINAL ETHANOL EXPORT SALES, INC., a Delaware corporation (the “Debtor’’), and FIRST NATIONAL...
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FIRST AMENDED AND RESTATED SECURITY AGREEMENT This First Amended and Restated Security Agreement (“Agreement”), dated as of January 31, 2024, is between CARDINAL ETHANOL EXPORT SALES, INC., a Delaware corporation (the “Debtor’’), and FIRST NATIONAL BANK OF OMAHA (the “Secured Party”). WHEREAS, pursuant to that certain Second Amended and Restated Construction Loan Agreement dated of even date with this Agreement (as amended, the “Loan Agreement”) between the Secured Party, as Lender, and Cardinal Ethanol, LLC and Cardinal Colwich, LLC, as Borrowers (collectively, the “Borrower’’), the Secured Party extended to the Borrowers the Loans and financial accommodations defined and described in the Loan Agreement, subject to the terms and conditions contained therein; WHEREAS, as a condition to the effectiveness of the Loan Agreement, the Debtor issue its unconditional, unlimited, and continuing guaranty (as it may be amended from time to time, the “Guaranty”) in support of the Liabilities (as defined in the Guaranty); WHEREAS, it is a further condition to the effectiveness of the Loan Agreement that the Debtor secure its obligations under the Guaranty with a Lien on the Collateral defined and described in this Agreement; 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 to this Agreement agree as follows: 1. Definitions. All capitalized terms used in this Agreement without definitions shall have the respective meanings provided therefor in the Loan Agreement. The term “State,” as used in this Agreement, 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 in this Agreement, means all of the indebtedness, obligations, and liabilities of the Borrower and the Debtor to the Secured Party, including, but not limited to, the Liabilities defined in the Guaranty, 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 Guaranty, Loan Agreement, the other Loan Documents, 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 other Indebtedness and obligations of the Borrower and/or the Debtor to the Secured Party now existing or hereafter arising including those under any Financial Instrument Agreements (as defined in the Loan Agreement), and any Banking Services Obligations of the
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full irrevocable power and authority in the place and stead of the Debtor or in the Secured Party’s own name, for the purpose of carrying out the terms of this Agreement, to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or useful to accomplish the purposes of this Agreement and, without limiting the generality of the foregoing, hereby gives said attorneys the power and right, on behalf of the Debtor, without notice to or assent by the Debtor, to do the following: (a) upon the occurrence and during the continuance of an Event of Default, generally to sell, transfer, pledge, make any agreement with respect to or otherwise dispose of or deal with any of the Collateral in such manner as is consistent with the Uniform Commercial Code of the State and as fully and completely as though the Secured Party were the absolute owner thereof for all purposes, and to do, at the Debtor’s expense, at any time, or from time to time, all acts and things which the Secured Party deems necessary or useful to protect, preserve, or realize upon the Collateral and the Secured Party’s security interest therein, in order to effect the intent of this Agreement, all at least as fully and effectively as the Debtor might do, including, without limitation, (i) the filing and prosecuting of registration and transfer applications with the appropriate federal, state, local, or other agencies or authorities with respect to trademarks, copyrights, and patentable inventions and processes, (ii) the filing and prosecuting of appropriate federal, state, or local claims against insurance funds, bonds, indemnities, or similar funds with the appropriate federal, state, or local agencies or authorities with jurisdiction over such claims, (iii) upon written notice to the Debtor, the exercise of voting rights with respect to voting securities, financial assets, or investment property, which rights may be exercised, if the Secured Party so elects, with a view to causing the liquidation of assets of the issuer of any such securities, financial assets, or investment property, and (iv) the execution, delivery and recording, in connection with any sale or other disposition of any Collateral, of the endorsements, assignments or other instruments of conveyance or transfer with respect to such Collateral; and (b) to the extent that the Debtor’s authorization given in Section 3 is not sufficient, to file such financing statements with respect hereto, with or without the Debtor’s signature, or a photocopy of this Agreement in substitution for a financing statement, as the Secured Party may deem appropriate and to execute in the Debtor’s name such financing statements and amendments thereto and continuation statements which may require the Debtor’s signature. 14.2. Ratification by Xxxxxx. To the extent permitted by law, the Debtor hereby ratifies all that said attorneys shall lawfully do or cause to be done by virtue hereof. This power of attorney is a power coupled with an interest and is irrevocable. 14.3. No Duty on Secured Party. The powers conferred on the Secured Party under this Agreement are solely to protect its interests in the Collateral and shall not impose any duty upon it to exercise any such powers. The Secured Party shall be accountable only for the amounts that it actually receives as a result of the exercise of 13
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electronic platforms approved by the Secured Party, 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 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 or any other similar state laws based on the Uniform Electronic Transactions Act; provided that notwithstanding anything contained herein to the contrary the Secured Party is under no obligation to agree to accept electronic signatures in any form or in any format unless expressly agreed to by the Secured Party pursuant to procedures approved by it. 27. Amended and Restated Security Agreement; Liens Unimpaired. This Agreement amends, restates and replaces in its entirety the Security Agreement, dated as of February 28, 2022 between the Secured Party and the Borrower, as so amended and as otherwise in effect immediately prior to the date hereof (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 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] 18
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CERTIFICATE OF ACKNOWLEDGMENT STATE OF INDIANA ) ) ss. COUNTY OF Xxxxxxxx ) Before me, the undersigned, a Notary Public in and for the county aforesaid, on this&O day of January, 2024, personally appeared Xxxxxxx Xxxxx _, to me known personally, and who, being by me duly sworn, deposes and says that he is the -C¥-U=yasunr of Cardinal Ethanol Export Sales, Inc., and that said instrument was signed on behalf of said corporation by authority of its Board of Directors, and said Xxxxxxxxx acknowledged said instrument to be the free act and deed of said corporation. Notary Public My commission expires: 2-122-/2-028 My County of Residence is: Randsi\in 20
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II. SCHEDULE A Locations/Commercial Tort Claims Debtor Locations: 0000 X. Xxxxxx Xxxx 000 X. Xxxxx Xxxx, Xxxxxxx 00000 Commercial Tort Claims: None 21