Exhibit 10.61
This instrument was prepared by: Bryan Cave Leighton Paisner LLP 161 N. Clark, Suite 4300 Chicago, IL 60601 | After recording return to: Rebecca Floren Bryan Cave Leighton Paisner LLP 161 N. Clark, Suite 4300 Chicago, IL 60601 |
THIRD AMENDMENT TO ILLINOIS FUTURE ADVANCE REAL ESTATE MORTGAGE
This Third Amendment to Illinois Future Advance Real Estate Mortgage (the “Third Amendment”), dated as of December 20, 2019, is entered into by and between PACIFIC ETHANOL PEKIN, LLC, a limited liability company organized and existing under the laws of Delaware (the “Mortgagor”), and COMPEER FINANCIAL, PCA, a federally-chartered instrumentality of the United States, successor by merger to 1ST FARM CREDIT SERVICES, PCA (the “Mortgagee”).
WHEREAS, the Mortgagor and the Mortgagee have entered into that certain Illinois Future Advance Real Estate Mortgage dated December 15, 2016 (as the same may from time to time be amended, restated, modified or otherwise supplemented, the “Mortgage”) and recorded on December 19, 2016 in the real estate or mortgage records of Tazewell County, Illinois as Document No. 201600020386;
WHEREAS, the Mortgagor and the Mortgagee have amended the Mortgage pursuant to: (i) that certain Amendment to Illinois Future Advance Real Estate Mortgage dated March 1, 2017 (the “First Amendment”) and recorded on March 29, 2017 in the real estate or mortgage records of Tazewell County, Illinois as Document No. 201700004376 and (ii) that certain Second Amendment to Illinois Future Advance Real Estate Mortgage dated March 20, 2019 (the “Second Amendment”) and recorded on April 4, 2019 in the real estate or mortgage records of Tazewell County, Illinois as Document No. 201900003825;
WHEREAS, Mortgagor, Mortgagee and CoBank, ACB are parties to a Credit Agreement dated as of December 15, 2016, (as amended, restated, supplemented or otherwise modified from time to time) including by that certain Amendment No. 7 to the Credit Agreement and Waiver (the “PEP Amendment”) of even date herewith;
WHEREAS, ILLINOIS CORN PROCESSING, LLC, a Illinois limited liability company organized under the laws of Delaware and affiliate of Mortgagor (“ICP”), Mortgagee and CoBank, ACB are parties to a Credit Agreement dated as of September 15, 2017, (as amended, restated, supplemented or otherwise modified from time to time (the “ICP Credit Agreement”) including by that certain Amendment No. 1 to Credit Agreement and Waiver (the “ICP Amendment”) of even date herewith.
WHEREAS, in connection with the PEP Amendment and the ICP Amendment, Mortgagor executed a Guaranty even dated herewith (the “ICP Guaranty”) in favor of the Mortgage, guarantying, among other things, ICP’s Obligations as such term is defined under the ICP Credit Agreement;
WHEREAS, the Mortgagor has requested that the Mortgage be further amended as herein provided; and
WHEREAS, the Mortgagee is willing, subject to the terms and conditions hereinafter set forth, to make such amendments;
NOW, THEREFORE, in consideration of the agreements herein contained, the parties hereby agree as follows:
1. The definition of “Obligations” contained in Section 1.01 of the Mortgage is hereby amended by deleting the first sentence of the definition in its entirety and replacing it with the following:
“Obligations shall mean;
(i) all Obligations (as such term is defined in that certain Credit Agreement dated as of December 15, 2016, by and among the Mortgagor, the Mortgagee, and CoBank, ACB) and all other indebtedness and other obligations of the Mortgagor to the Mortgagee and CoBank, ACB of every type and description, whether now or hereafter arising, fixed or contingent, as primary obligor or as guarantor or surety, acquired directly or by assignment or otherwise, liquidated or unliquidated, regardless of how they arise or by what agreement or instrument they may be evidenced, including without limitation, all future advances, future obligations, indebtedness under all loans, advances and other extensions of credit made to or for the account of the Mortgagor, including, without limitation, the promissory note(s) that are more particularly identified on Exhibit “B” hereto (as such promissory notes may be amended, restated, modified, supplemented, replaced, refinanced, or renewed from time to time), and including, without limitation, obligations under Interest Rate Agreements (as defined below), and all covenants, agreements, and provisions contained in this Mortgage and in any of the Credit Agreements, and
(ii) all Obligations (as such term is defined in that certain Guaranty dated as of December 20, 2019, executed by the Mortgagor in favor of the Mortgagee and CoBank, ACB) (the “PEP Guaranty”); provided that, upon payment in full of the Guaranteed Amount (as defined in the PEP Guaranty), this clause (ii) shall be automatically deleted and thereafter, the defined term “Obligations” as set forth herein shall mean as defined in above clause (i), and the promissory notes referenced on Exhibit B shall only include those promissory notes made by Mortgagor.”
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2. Exhibit B of the Mortgage is hereby amended by deleting it in its entirety and replacing it withExhibit B attached hereto.
3. The Mortgage, as amended hereby, continues to serve as security for all past, current and future Obligations (as defined above) of every kind and nature which currently exist or may exist in the future.
4. This Third Amendment shall not be construed as a novation of the promissory note(s) or other obligations secured by the Mortgage.
5. All terms and conditions of the Mortgage shall remain in full force and effect except as amended by this Third Amendment, and in all other respects are fully confirmed and ratified, and the Mortgage shall continue as a lien upon all the real property described inExhibit A attached hereto and Exhibit A to the Mortgage.
6. This Third Amendment relates only to the specific matters covered herein and shall not constitute a consent to or waiver or modification of any other provision term or condition of the Mortgage.
7. This Third Amendment may be executed in two or more counterparts, each of which shall be deemed an original but all of which shall together constitute one and the same instrument.
[Signatures follow on next page.]
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IN WITNESS WHEREOF, Pacific Ethanol Pekin, LLC, as Mortgagor, has caused this Third Amendment to be signed in its name, all as of the day and year first above written.
| Pacific Ethanol Pekin, LLC, Mortgagor | ||
| By: | /s/ Michael Kramer | |
| Printed Name: | Michael Kramer | |
| Title: | Vice President & Treasurer | |
| A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. |
| STATE OFCalifornia | ) | |
| COUNTY OFSACRAMENTO | ) |
On December 26, 2019 before me, Nicole C. McClure, Notary Public, personally appeared Michael Kramer, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies) and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
| Signature: | /s/ Nicole C. McClure | (seal) |  |
[Amendment to Mortgage Signature Page]
| LENDER: | ||
| COMPEER FINANCIAL, PCA | ||
| By: | /s/ Kevin Buente | |
| Name: | Kevin Buente | |
| Title: | Principal Credit Officer | |
| STATE OF ILLINOIS | ) | |
| ) | ||
| COUNTY OF DUPAGE | ) |
The foregoing instrument was acknowledged before me this 26th day of December, 2019, by Kevin Buente, as Principal Credit Officer of Compeer Financial, PCA, a federally-chartered instrumentality of the United States.
Witness my hand and official seal.
(SEAL)
| By: | /s/ Colleen Besic | |
| Notary Public: State of Illinois | ||
| My commission expires: 7-19-20 | ||
[Amendment to Mortgage Signature Page]
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[Amendment to Mortgage Signature Page]
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EXHIBIT B
The “Obligations” as described in the Definitions section above include without limitation the following promissory note(s):
| a) | That certain Term Note made by Mortgagor in favor of Mortgagee, dated December 15, 2016, in the principal amount of $64,000,000, as amended and restated on March 30, 2018, in the principal sum of $64,000,000, as amended and restated on March 20, 2019 in the principal amount of $64,000,000, as amended and restated on December 20, 2019, in the principal amount of $39,500,000, as such note may be amended, modified or restated from time to time. |
| b) | That certain Revolving Term Note made by Mortgagor in favor of Mortgagee, dated December 15, 2016, in the principal amount of $32,000,000, as amended and restated on March 20, 2019 in the principal amount of $32,000,000, as amended and restated on December 20, 2019, in the principal amount of $32,000,000, as such note may be amended, modified or restated from time to time. |
| c) | That certain Term Note made by ICP in favor of Mortgagee, dated September 15, 2017, in the principal amount of $24,000,000, as amended and restated on December 20, 2019, in the principal amount of $12,000,000, as such note may be amended, modified or restated from time to time. |
| d) | That certain Revolving Term Note made by ICP in favor of Mortgagee, dated September 15, 2017, in the principal amount of $18,000,000, as amended and restated on December 20, 2019, in the principal amount of $18,000,000, as such note may be amended, modified or restated from time to time. |
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