Exhibit 4.1.4
Account No. 234-34802
234-34803
234-34804
234-34805
234-34806
234-34807
234-34808
CONTROL AGREEMENT AND ASSIGNMENT OF HEDGING
ACCOUNT
WHEREAS, the undersigned, MGP INGREDIENTS, INC.,
a Kansas corporation (hereinafter called the “Debtor”),
whose address is, 100 Commercial Street, Atchison, KS 66002
carries certain hedging accounts, including without limitation
Hedging Accounts (No. 234-34802, 234-34803, 234-34804,
234-34805, 234-34806, 234-34807, 234-34808) (collectively, the
“Account”) with the firm of ADM INVESTOR SERVICES,
INC., as brokers (hereinafter called the “Broker”),
whose address is Suite 1600A, 141 W. Jackson Blvd., Chicago,
Illinois 60604, for hedging transactions in commodities futures
contracts; and Debtor is or will be indebted to WELLS FARGO BANK,
NATIONAL ASSOCIATION, acting through its Wells Fargo Business
Credit operating division, whose address is MAC N9312-040, 109
South 7th Street, 4th Floor, Minneapolis, MN 55402 (hereinafter
called the “Secured Party”), pursuant to the terms of
that certain Credit and Security Agreement dated as of
July , 2009, by and
between Debtor and the Secured Party (as the same may be amended,
modified, supplement, or restated from time to time, the
“Credit Agreement”).
WHEREAS, pursuant to the terms of the Credit
Agreement, the Debtor has granted a security interest in certain
assets of the Debtor, including without limitation, the Account
with Broker and each item of property (whether “investment
property”, as defined in Section 9-102(a)(49) of the
Uniform Commercial Code in effect in the State of Minnesota, a
security, a security entitlement, a commodity contract, an
instrument, cash or otherwise), including all replacements or
substitutions for, and proceeds of the sale or other disposition
of, any of the foregoing, including without limitation, cash
proceeds (i) that is or may in the future be standing to the
credit of the Account, (ii) that has been received and
accepted, or may in the future be received and accepted, by the
Broker for credit to the Account or (iii) as to which the
Broker is or may in the future become obligated by law, regulation,
rule or agreement to credit to the Account (collectively, the
“Account Property”).
NOW, THEREFORE, it is hereby agreed by and
between the parties hereto as follows:
1. The security interest
of Secured Party against the Account and the Account Property is
subject to the prior payment of all indebtedness of the Debtor to
the Broker, as such may exist from time to time, including fees and
commissions, which may have been incurred in connection with
Debtor’s transactions with Broker, and to Broker’s
lien, and the right of foreclosure thereof in connection with any
indebtedness of Debtor to Broker (including any right of Broker to
close out open positions without prior demand for additional margin
and without prior notice); provided, however, that (a) the
term “indebtedness” as used in this Section 1
shall not include any loans, advances or other extensions of credit
from Broker to Debtor and (b) Broker shall have no right of
set-off in connection with any such loans, advances or extensions
of credit from Broker to Debtor.
2. The broker is hereby
authorized and directed to pay to the Secured Party upon its demand
all funds that may hereafter be withdrawable or payable out of the
Account of the Debtor with the Broker, and the Debtor agrees that
it will not withdraw or attempt to withdraw any Account Property
from the Account except as permitted by this Control Agreement and
Assignment of Hedging Account (the “Agreement”).
The Secured Party is hereby authorized and fully empowered without
further authority from the Debtor to request Broker to remit to the
Secured Party any funds that may be due to the Debtor or to direct
the transfer, liquidation, or redemption of any of the Account
Property, and the Broker is hereby authorized and directed to pay
to the Secured Party such sums as it shall so request or demand or
to comply with such request to transfer, liquidate or redeem any of
the Account Property, all without the consent of or notice to the
Debtor.
3. The Debtor hereby
constitutes and appoints the Secured Party its true lawful and
irrevocable attorney to demand, receive, and enforce payments and
to give receipts, releases, satisfactions for, and to sue for all
monies
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