This document was prepared by and after recording should be returned to: Jack Edelbrock Mayer Brown LLP
Exhibit 10.11
This document was prepared by
and after recording should be
returned to:
Xxxx Xxxxxxxxx
Xxxxx Xxxxx LLP
00 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
AMENDMENT TO MORTGAGE, ASSIGNMENT OF LEASES AND RENTS,
SECURITY AGREEMENT AND FIXTURE FILING STATEMENT
This Amendment to Mortgage, Assignment of Leases and Rents, Security Agreement, and Fixture Filing Statement (this “Amendment”) is entered into as of June , 2015 by and between GREEN PLAINS BLUFFTON LLC, an Indiana limited liability company (together with its successors and permitted assigns, “Mortgagor”) having an address of 000 Xxxxxxx Xxxxxxx, Xxxxx 000, Xxxxx, XX 00000, and BNP PARIBAS (“BNPP”), as administrative agent and as collateral agent (the “Agent”), having an address of 000 Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000 (together with its successors and assigns, the “BNPP”).
RECITALS
X. XXXXX PLAINS PROCESSING LLC (the “Borrower”), various financial institutions, BNPP and BMO Capital Markets and BNP Paribas Securities Corp., as joint lead arrangers and joint book runners (the “Arrangers”), are parties to a Term Loan Agreement dated as of June 10, 2014 (the “Original Loan Agreement”). Any capitalized term used in this Amendment that is not otherwise defined herein, either directly or by reference to another document, shall have the meaning for purposes of this Amendment as it is given in the Original Loan Agreement.
B. Contemporaneously herewith, the Original Loan Agreement is being amended by (i) a certain Consent and First Amendment to Term Loan Agreement (the “First Loan Agreement Amendment”) and (ii) Second Amendment to Term Loan Agreement (the “Second Loan Agreement Amendment”; as so amended by the First Loan Agreement Amendment and the Second Loan Agreement Amendment, and as it may from time to time be further amended, restated or otherwise modified, the “Loan Agreement”).
C. Mortgagor is a Subsidiary of the Borrower and as such has received substantial direct and indirect benefit from the extension of credit and other financial accommodations made to the Borrower and the Subsidiaries evidenced by the Original Loan Agreement, and Mortgagor will continue to do so from the extension of credit and other financial accommodations to be made pursuant to the Loan Agreement.
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D. The Mortgagor executed and delivered to the Agent a Guaranty of even date with the Original Loan Agreement, and contemporaneously herewith is reaffirming such Guaranty (as originally executed, as so reaffirmed and as it may from time to time be amended, restated or otherwise modified, the “Guaranty”), pursuant to which the Mortgagor has guarantied the obligations of the Borrower with respect to the loans made under the Loan Agreement (the “Loans”) and the other extensions of credit and financial accommodations made under each of the other Loan Documents, (together with the Loans, collectively, the “Guarantied Obligations”).
E. To secure the Guarantied Obligations, the Mortgagor executed and delivered a Mortgage, Assignment of Leases and Rents, Security Agreement, and Fixture Filing Statement of even date with the Original Loan Agreement (the “Original Mortgage”) to BNPP. The Original Mortgage was recorded in the real property records of Xxxxx County, Indiana in Book 138, Page 567 on June 17, 2014. The Original Mortgage encumbers certain real property situated in such County and State and is legally described in Exhibit A hereto (the “Original Secured Property”).
F. It is a condition to the effectiveness of the First Loan Agreement Amendment that the Mortgagor execute and deliver this Amendment to confirm that the Original Mortgage, as amended hereby and as it may from time to time be further amended, restated or otherwise modified continues to secure the Guarantied Obligations and all direct obligations of the Mortgagor with respect to the Loans (collectively, the “Obligations Secured”).
AGREEMENT
NOW, THEREFORE, the Mortgagor and the Mortgagee agree as follows
1. Incorporation of Recitals. The foregoing Recitals are true and accurate.
2. Amendment of Original Mortgage Provisions.
(a) Obligations Secured. All references in the Original Mortgage to the Obligations Secured that are defined by reference to the Original Loan Agreement shall be defined by and deemed to refer to the Loan Agreement.
(b) Guaranty. The term “Guaranty” as used in the Mortgage shall mean such obligation as expressed in the Loan Agreement.
(c) Future Amount Secured. Section 18 of the Original Mortgage is modified by deleting “$225,000,000” in clause (i) and replacing it with “$345,000,000.00”. All references in the Original Mortgage to the amount $225,000,000.00 shall refer to the amount $345,000,000.00.
(d) Latest Maturity Date. All references in the Original Mortgage to the latest date on which Obligations Secured, including all sums required to be paid by the Mortgagor under and with respect to the Mortgage or any other Loan Document shall be to the date that is twenty (20) years from the date hereof.
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3. The Amended Loan Documents.
| (a) | The term “Mortgage” as used in this Amendment shall mean the Original Mortgage, as amended hereby and as it may from time to time be further amended, restated, supplemented, replaced or otherwise modified. |
| (b) | All references in the Mortgage to the Original Loan Agreement or any predecessor thereof shall be deemed references to the Loan Agreement. |
| (c) | All references in the Mortgage to any instrument as evidence of the Obligations Secured shall be deemed references to the Loan Agreement and any other instrument(s) issued to additionally evidence any portion of the Obligations Secured under the Guaranty as expressed in the Loan Agreement. |
| (d) | The term “Loan Documents”, as used in the Mortgage, shall mean, in addition to those documents included within such term by the Original Loan Agreement, all such documents as specified by reference to the Loan Agreement, as all such documents may from time to time be amended, restated, supplemented or modified. |
| (e) | This Amendment and the Mortgage shall each be considered a “Loan Document” under and as defined in the Loan Agreement. |
4. Priority. Nothing contained herein shall in any manner affect or impair the priority of the lien of the Original Mortgage as to the indebtedness secured thereby prior to giving effect to this Amendment, nor affect any other security held by BNPP to secure repayment or performance of the obligations referred to therein. The Mortgagor confirms that the Mortgage secures the timely payment and the timely performance of all Obligations Secured (as references to that term are modified in Sections 2 and 3 above), as and when required.
5. Reaffirmation. The Mortgagor hereby repeats, reaffirms and remakes all representations, warranties, covenants and agreements contained in the Original Mortgage as of the date of this Amendment.
6. Representations. The Mortgagor represents and warrants that (i) no default or event of default currently exists under the Original Mortgage and (ii) no condition exists which with the giving of notice or the passage of time, or both, would result in such a default or event of default.
7. Full Force and Effect. All of the provisions, rights, powers and remedies contained in the Original Mortgage shall stand and remain unchanged and in full force and effect, except to the extent specifically amended hereby.
8. References. No reference to this Amendment need be made in any instrument or document at any time referring to the Original Mortgage, and any reference in any such instrument or document to the Original Mortgage shall be deemed to be a reference to the Mortgage.
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9. Governing Law. This Amendment shall be construed in accordance with and governed by the internal laws of the state where the Land is located.
10. Time of the Essence. Time is of the essence with respect to the payment and performance of all obligations to be performed under the Mortgage.
11. Successors and Assigns. The Mortgage binds the Mortgagor and its successors, assigns, heirs, administrators, executors, agents and representatives and inures to the benefit of BNPP and its respective successors, assigns, heirs, administrators, executors, agents and representatives.
12. Counterparts. This Amendment may be executed in any number of counterparts, each of which shall be deemed an original, but which together shall constitute one and the same instrument.
13. Amendments. No provision of this Amendment may be modified, amended or waived except by a writing executed by the party sought to be bound thereby. No consent or approval of BNPP shall be given or deemed to have been given except to the extent expressly set out in a writing executed and delivered by BNPP to the Mortgagor.
14. WAIVERS. THE MORTGAGOR HEREBY REPEATS, REAFFIRMS AND REMAKES ALL WAIVERS CONTAINED IN THE MORTGAGE AS OF THE DATE OF THIS AMENDMENT, INCLUDING (WITHOUT LIMITATION) THE WAIVER OF JURY TRIAL CONTAINED IN THE ORIGINAL MORTGAGE.
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IN WITNESS WHEREOF, this Amendment has been duly executed effective as of the date first written above.
| MORTGAGOR | ||||
| GREEN PLAINS BLUFFTON LLC, an Indiana limited liability company | ||||
| By: | /s/ Xxxxxxxx Xxxxx | |||
| Name: | Xxxxxxxx Xxxxx | |||
| Its: | EVP-General Counsel & Corporate Secretary | |||
| STATE OF NEBRASKA | ) | |||
| ) SS. | ||||
| COUNTY OF XXXXXXX | ) |
On this 10th day of June, 2015 before me appeared Xxxxxxxx Xxxxx to me personally known, who, being by me duly sworn, did say that she/he is the Authorized Signatory of GREEN PLAINS BLUFFTON LLC, an Indiana limited liability company, and that said instrument was signed on behalf of such company, pursuant to due authority, properly exercised, and s/he acknowledged such instrument to be the free act and deed of such company.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal in the County and State aforesaid, the day and year first above written.
| /s/ XXXXXX X. XXXXXXXX |
| Notary Public |
| My term expires: | 1/5/2016 |
[signatures continued]
| BNPP | ||
| BNP PARIBAS, as Administrative Agent and as Collateral Agent | ||
| By: | /s/ Xxxxxxx X. Xxxxxx | |
| Name: | Xxxxxxx X. Xxxxxx | |
| Its: | Managing Director | |
| By: | /s/ Karlien Zumpolle | |
| Name: | Karlien Zumpolle | |
| Its: | Director | |
| STATE OF | New York | ) | ||
| ) SS. | ||||
| COUNTY OF | Richmond | ) |
On this 10th day of June, 2015 before me appeared Xxxxx Xxxxxx and Karlien Zumpolle to me personally known, who, being by me duly sworn, did say that they are an Managing Director and Director of BNP PARIBAS, a Bank, and that said instrument was signed on behalf of such company, pursuant to due authority, properly exercised, and s/he acknowledged such instrument to be the free act and deed of such company.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal in the County and State aforesaid, the day and year above written.
| /s/ Xxxxxx X. Xxxxx | ||
| Printed Name: | Xxxxxx X. Xxxxx | |
| Notary Public | ||
| My term expires: | 11/10/2018 | |
I affirm, under the penalties for perjury, that I have taken reasonable care to redact each Social Security number in this document, unless required by law: Xxxx Xxxxxxxxx
