Exhibit 4.8
SUBORDINATED SECURED PROMISSORY
NOTE
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$2,000,000.00
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March 27, 2009
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Atchison, Kansas
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FOR VALUE RECEIVED,
the undersigned, MGP
INGREDIENTS, INC., a Kansas corporation and MIDWEST GRAIN
PIPELINE, INC. , a Kansas corporation (each a “
Borrower ” and collectively the Borrowers), each
jointly and severally promises to pay to the order of the CLOUD
L. CRAY, JR. TRUST under agreement dated October 25, 1983,
whose address is 20045 266th Road, Atchison, Kansas 66002 (together
with his successors and assigns, the “ Lender ”)
the principal amount of TWO MILLION DOLLARS ($2,000,000.00)
(the “ Principal Amount ”), together with
interest upon the principal balance remaining outstanding from time
to time as set forth below, in payments as set forth below.
The indebtedness evidenced by this Subordinated Secured Promissory
Note (the “ Note ”) is referred to herein as the
“ Loan .”.
1.
PROMISE TO PAY PRINCIPAL
.
Subject to the
terms of the Subordination Agreement (as defined below), the
Borrowers promise to pay to the Lender the outstanding principal of
the Loan under this Note in full on the Maturity Date of this
Note.
2.
MATURITY DATE.
The “ Maturity Date
” of this Note shall be the earlier of: (a) the date
that is 1 year from the date hereof; or (b) the
acceleration of the Loan by the Lender upon the occurrence of an
Event of Default (as defined below).
3.
INTEREST.
The applicable interest rate (the
“ Applicable Interest Rate ”) shall be interest
at a rate per annum equal to seven percent (7%) .
Interest on this Note shall be calculated on the actual number of
days elapsed, on the basis of a calendar year.
4.
PAYMENTS.
The Borrowers shall make payments to
Lender at his address or as later communicated to Borrowers, in
immediately payable U.S. funds. Payments shall be applied
first to unpaid fees, costs, and expenses which are reimbursable
under the terms of this Note, then to accrued unpaid interest, then
to principal. If any payment due date is a Saturday, Sunday,
or holiday generally observed by banks in Atchison, Kansas, the due
date of the payment shall automatically be extended to the next
following banking business day.
4.1.
Interest and Principal
Payments. Subject to the terms
of the Subordination Agreement, the Borrowers shall pay interest in
a single lump sum payment on the Maturity Date. Principal
payments of the Loan will be paid in accordance with
Section 1 .
4.2.
Final Payment. Subject to the terms
of the Subordination Agreement, all accrued and unpaid interest,
late payment charges, outstanding principal, and all other amounts
chargeable under the Loan Documents shall be due and payable in
full on the Maturity Date.
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5.
BUSINESS LOAN.
The purpose of the Loan is to fund
the Borrowers’ general corporate purposes. The
Borrowers agree that the funds the Borrowers receive under the
terms of the Loan will be used only for these purposes. The
Borrowers agree that this is a business loan and that none of the
Loan proceeds have been or will be used for any personal, consumer,
family, or household purpose.
6.
SECURITY.
6.1.
Grant of Security Interest
. Each
Borrower hereby grants to Lender a security interest in, and a lien
on, all of such Borrower’s right, title and interest in the
following property (together with any property subject to a lien in
favor of the Lender pursuant to any other Loan Document, the
“ Collateral
”) wherever
located and whether now owned or hereafter acquired or arising
(capitalized terms used in this Section 6 and not otherwise defined in
this Note shall have the meaning assigned to such terms in the
Uniform Commercial Code as adopted by the State of
Kansas):
(a)
all
Equipment;
(b)
all General
Intangibles (including, without limitation, patents, trademarks and
trade names and applications for patents, trademarks and trade
names);
(c)
all Chattel
Paper;
(d)
all
Documents;
(e)
all
Instruments;
(f)
all Investment
Property;
(g)
all Deposit
Accounts;
(h)
all
Fixtures;
(i)
all As -
Extracted Collateral;
(j)
all books,
records, ledger cards, data processing records, Software, and other
property at any time evidencing or relating to
Collateral;
(k)
all monies,
securities, and other property now or hereafter held, or received
by, or in transit to, Lender, from or for the Borrower;
(l)
all parts,
accessories, attachments, special tools, additions, replacements,
substitutions, and accessions to or for all of the foregoing;
and
(m)
All Proceeds and
products of all of the foregoing in any form, including, without
limitation, amounts payable under any policies of insurance
insuring the foregoing against loss or damage, and all increases
and profits received from all of the foregoing.
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6.2.
Excluded Assets . Notwithstanding
anything in this Note to the contrary the Collateral shall not
include the Excluded Assets.
“
Excluded Assets ” means:
(1)
all
Accounts;
(2)
all Inventory;
(3)
the Excluded GE
Equipment Collateral;
(4)
the Excluded Real
Estate; and
(5)
MGP’s
equity interest in D.M. Ingredients GmbH.
“
Excluded GE Equipment
Collateral ” means Equipment of
the Borrowers so long as such Equipment is encumbered by a the lien
in favor of GE Capital Public Finance, Inc. set forth in
Schedule 5.1(m) of the Senior Credit Agreement; provided,
however, that, upon the repayment or other satisfaction of the
debt secured by any such lien, the related Equipment shall no
longer constitute Excluded GE Equipment Collateral.
“
Excluded Real Estate
” means
(1) MGP’s “new” office building and
laboratory located in Atchison, Kansas and which has been conveyed
to, and leased back from, the City of Atchison in connection with
an industrial revenue bond financing transaction (including,
without limitation, the Borrower’s leasehold interest in such
property), and (2) MGP’s plant located in Kansas City,
Kansas (i.e., the KCIT Facility), so long as such plant is
encumbered by a lien which secures “Permitted Debt”
under the Senior Credit Agreement.
6.3.
Real Estate Collateral
. The
obligations of the Borrowers to the Lender are also secured by
certain liens on certain parcels of the Borrowers’ real
property in Pekin, Illinois and Atchison, Kansas granted to the
Lender by the Borrowers pursuant to those certain Mortgage,
Assignment of Leases, Security Agreements and Fixture Filing
Financing Statements (the “ Mortgages ”) entered into as of
the date of this Note.
6.4.
Secured Obligations
. The
security interests granted by Borrowers pursuant to this
Section 6 secure payment of any and all
indebtedness, and performance of all obligations and agreements, of
the Borrowers to Lender pursuant to this Note. The Borrowers
authorize the Lender to file any UCC financing statements the
Lender deems necessary or desirable to perfect the lien granted
pursuant to this Section 6 including with a description
of the collateral as “all assets” or a substantially
similar description; provided that such description shall expressly
exclude the Excluded Assets.
6.5.
Subordination to Senior
Obligations . The security interest
granted pursuant to this Note and the Lender’s rights and
remedies with respect to the Collateral are subordinated to certain
other security interests and liens pursuant to, and to the extent
provided in, that certain Subordination Agreement dated as of
March , 2009 (the “Subordination Agreement”
) in favor of
Commerce Bank, N.A, a national banking association, in its capacity
as Agent under the Credit Agreement referred to in such
Subordination Agreement, as the same may be amended, restated,
consolidated, replaced or otherwise modified from time to
time.
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7.
CONDITIONS PRECEDENT TO
OBLIGATIONS
The Borrowers and
the Lender shall have delivered or caused to be delivered the
following this Note, the Mortgages, and the Intercreditor
Agreement, in each case du
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