CROSS REFERENCE INSTRUMENT NUMBERS 20066145 AND 20132845] SECOND AMENDMENT OF FIRST AMENDED AND RESTATED CONSTRUCTION LOAN MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT OF LEASES AND RENTS AND FIXTURE FINANCING STATEMENT
[CROSS REFERENCE INSTRUMENT NUMBERS 20066145 AND 20132845]
SECOND AMENDMENT OF FIRST AMENDED AND RESTATED CONSTRUCTION LOAN MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT OF LEASES AND RENTS AND FIXTURE FINANCING STATEMENT
This SECOND AMENDMENT OF FIRST AMENDED AND RESTATED CONSTRUCTION LOAN MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT OF LEASES AND RENTS AND FIXTURE FINANCING STATEMENT (this “Amendment”) is dated as of July 31, 2016, is by and between CARDINAL ETHANOL, LLC (“Mortgagor”), an Indiana limited liability company whose address is 0000 Xxxxx 000 X, Xxxxx Xxxx, Xxxxxxx 00000 and FIRST NATIONAL BANK OF OMAHA, a national banking association (“Mortgagee”), whose address is 1620 Dodge St., Stop 1029, Xxxxx, Xxxxxxxx 00000, Attention: Xxxx Xxxxxxxx and amends that certain First Amended and Restated Construction Loan Mortgage, Security Agreement, Assignment of Leases and Rents and Fixture Financing Statement dated June 10, 2013 (as amended, the "Mortgage") to and for the benefit of Mortgagee, encumbering certain property in Xxxxxxxx County, Indiana legally described on Exhibit A attached hereto and made a part hereof, which Mortgage was recorded with the Xxxxxxxx County Recorder on June 11, 2013 as Instrument #20132845 and which Mortgage was amended by that certain First Amendment of First Amended and Restated Construction Loan Mortgage, Security Agreement, Assignment of Leases and Rents and Fixture Financing Statement dated July 23, 2015 and recorded August 12, 2015 as Instrument #20152956.
W I T N E S S E T H:
WHEREAS, Mortgagor and Mortgagee have entered into an Eighth Amendment of First Amended and Restated Construction Loan Agreement dated of even date herewith (the “Amendment”) which amends that certain First Amended and Restated Construction Loan Agreement dated June 10, 2013 (as amended, the "Loan Agreement") and extends the Term Loan to Borrower in the principal amount of $15,000,000;
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WHEREAS, Mortgagor executed the Mortgage to secure the Obligations (as defined in the Mortgage), which included, without limitation, the repayment of Loans under the Loan Agreement; and
WHEREAS, Mortgagor and Mortgagee desire to include the Term Loan as an Obligation secured by the Mortgage.
NOW, THEREFORE, in consideration of Ten Dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1.Each of the recitals set forth above are incorporated herein as if set forth verbatim.
2.The term “Mortgage”, as defined in the Mortgage, shall be deemed to mean the Mortgage as amended by this Amendment, as the same may be hereafter further amended, supplemented, restated or modified from time to time. Capitalized terms not otherwise defined herein shall have the meaning given to such terms in the Loan Agreement.
3.The first sentence of Recital A of the Mortgage is hereby amended by inserting new subsection (v) after the end of subsection (iv) after the clause “between Mortgagor and Mortgagee” as follows: “and (v) a Term Loan in the principal amount of $15,000,000.00”. The defined terms “Loans” and “Obligations” in the Mortgage are hereby amended to include the Term Loan.
4.The Mortgage, as amended by this Amendment, shall remain in full force and effect as originally executed and delivered by Mortgagor, except as expressly modified and amended herein. Mortgagor hereby confirms and reaffirms all of its obligations under the Mortgage, as modified and amended by this Amendment.
5.In the event any provision of this Amendment shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof.
6.This Amendment may be executed in any number of counterparts with the same effect as if all of the parties hereto had signed the same document. All counterparts shall be construed together and shall constitute one instrument.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, Mortgagor and Mortgagee have executed and delivered this Amendment as of the date first written above.
IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT SHOULD BE READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE ENFORCEABLE. NO OTHER TERMS OR ORAL PROMISES NOT CONTAINED IN THIS WRITTEN CONTRACT MAY BE LEGALLY ENFORCED. YOU MAY CHANGE THE TERMS OF THIS AGREEMENT ONLY BY ANOTHER WRITTEN AGREEMENT.
MORTGAGOR:
CARDINAL ETHANOL, LLC, an Indiana limited liability company
By:
/s/ Xxxxxxx Xxxxx
Title:
Chief Financial Officer and Treasurer
FIRST NATIONAL BANK OF OMAHA
By:
/s/ Xxxxx Xxxxxxxxxx
Title:
Vice President
Prepared by and after recording return to:
Xxxxx X. Xxxxxxx
Xxxxxxxx Xxxxxx & Xxxxxxx LLP
0000 Xxxx Xxxxx Xxxx, Xxxxx 000
Xxxxx, Xxxxxxxx 00000
I affirm, under penalties for perjury that I have taken reasonable care to redact each Social Security Number in this document, unless required by law.
__________________________
Xxxxx X. Xxxxxxx
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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 31st day of July, 2016, personally appeared September 2, 2016 , to me known personally, and who, being by me duly sworn, deposes and says that he is the CFO of CARDINAL ETHANOL, LLC, an Indiana limited liability company, and that said instrument was signed on behalf of said limited liability company by authority of its board of directors and members, and said officer acknowledged said instrument to be the free act and deed of said limited liability company.
/s/ Xxxxxxxxxx Xxxxxxx Peed
Notary Public
My commission expires:
Sept. 11, 2022
My County of Residence: Xxxxxxxx
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CERTIFICATE OF ACKNOWLEDGMENT
STATE OF NEBRASKA )
) ss.
COUNTY OF XXXXXXX )
Before me, the undersigned, a Notary Public in and for the county aforesaid, on this 31st day of July, 2016, personally appeared Xxxxxxxxxxx Xxxxxxxxx, to me known personally, and who, being by me duly sworn, deposes and says that he is a Vice President of First National Bank of Omaha, a national banking association, and that said instrument was signed on behalf of said association by authority of its board of directors, and said officer acknowledged said instrument to be the free act and deed of said association.
/s/ Xxxxxxxxx X. Xxxxxx
Notary Public
My commission expires:
September 8, 2016
My County of Residence: Sarpy
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EXHIBIT A
LEGAL DESCRIPTION
Tract I, containing 207.623 acres
Situated in the Northeast and Southeast Quarters, both being in Section 17, Township 20 North, Range 15 East, Xxxxx Township, Xxxxxxxx County, Indiana, being more particularly described as follows:
Beginning at a mag nail found at the southeast corner of the Xxxxxxxxx Xxxxxxx xx Xxxxxxx Xxxxx Xxxxxxx Xx. 00;
Thence North 89°50’43” West 1993.12 feet (bearing base established from State Plan Coordinates) along the south line of said Xxxxxxxxx Xxxxxxx, Xxxxxxx Xxxxx Xxxxxxx Xx. 00, to a mag nail set, witness an iron rod set North 00°09’17” East 30.00 feet (all iron rods set are 5/8” rebar with plastic cap stamped “RLS 20400025”);
Thence North 00°09’17” East 332.46 feet, to an iron rod set;
Thence North 89°50’43” West 298.90 feet, to an iron rod set;
Thence South 00°09’17” West 332.46 feet, to a mag nail set on the south line of said Southeast Quarter, witness an iron rod set North 00°09’17” East 30.00 feet;
Thence North 89°50’43” West 502.27 feet, along said south line, in said highway, to a mag nail found at said southwest corner of said Southeast Quarter, witness a concrete post found North 01°31’35” East 30.52 feet;
Thence North 01°31’35” East 2649.53 feet along the west line of said Southeast Quarter, to an iron rod set at the northwest corner of said Quarter (all iron rods set are 5/8” rebar with plastic cap stamped “RLS 20400025”);
Thence North 01°31’35” East 378.81 feet along the west line of said Northeast Quarter, to an iron rod set on the south right-of-way of the New York Central Lines Railroad;
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Thence North 77°15’15” East 2775.43 feet along said south right-of-way, to a mag nail set on the east line of said Northeast Quarter, in Xxxxxxxx County Road 600 East, witness a concrete end post found South 77°15’15” West 21.33 feet;
Thence South 00°40’05” West 1012.22 feet along the east line of said Northeast Quarter, in said County Road to an iron rod found at the southeast corner of said Northeast Quarter;
Thence South 00°23’58” West 2635.04 feet along the east line of said Southeast Quarter, in said road, to the point of beginning, containing 207.623 acres, more or less, there being 43.128 acres, more or less, in the Northeast Quarter and 164.495 acres, more or less, in the Southeast Quarter.
Tract II, containing 87.598 acres
Situated in the Northwest and Southwest Quarters, both in Xxxxxxx 00, Xxxxxxxx 00 Xxxxx, Xxxxx 15 East, Xxxxx Township, Xxxxxxxx County, Indiana, being more particularly described as follows:
Beginning at a mag nail found at the southeast corner of the Southwest Quarter, in Indiana State Highway No.32, witness a concrete end post found North 01°31’35” East 30.52 feet;
Thence North 89°42’11” West 1320.67 feet (bearing base established from State Plan Coordinates) along the south line of said Southwest Quarter, in said State Highway, to a mag nail set at the Southeast corner of a 63.39 acre tract as recorded in Instrument 0002247, witness a concrete end post found North 01°12’42” East 30.49 feet;
Thence North 01°12’42” East 2652.77 feet along the east line of said 63.39 acre tract, to an iron rod set on the North line of said Southwest Quarter;
Thence North 01°12’42” East 64.26 feet, entering into the Northwest Quarter, to an iron rod set on the south right-of-way of the New York Central Lines Railroad (all iron rods set with plastic cap stamped 7955);
Thence North 77°15’15” East 1377.82 feet along said right-of-way, to an iron rod set on the east line of said Northwest Quarter;
Thence South 01°31’35” West 378.81 feet along the east line of said Northwest Quarter, to an iron rod set at the southeast corner of said Quarter;
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Thence South 01°31’35” West 2649.53 feet along the east line of said Southwest Quarter, to the point of beginning, containing 87.598 acres, more or less, there being 80.807 acres, more or less, in the Southwest Quarter and 6.791 acres, more or less, in the Northwest Quarter.
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