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SUBORDINATED SECURED PROMISSORY NOTE

Promissory Note

SUBORDINATED SECURED PROMISSORY NOTE | Document Parties: MGP INGREDIENTS, INC | MIDWEST GRAIN PIPELINE, INC You are currently viewing:
This Promissory Note involves

MGP INGREDIENTS, INC | MIDWEST GRAIN PIPELINE, INC

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Title: SUBORDINATED SECURED PROMISSORY NOTE
Governing Law: Kansas     Date: 9/11/2009
Industry: Food Processing     Sector: Consumer/Non-Cyclical

SUBORDINATED SECURED PROMISSORY NOTE, Parties: mgp ingredients  inc , midwest grain pipeline  inc
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Exhibit 4.8

 

SUBORDINATED SECURED PROMISSORY NOTE

 

$2,000,000.00

March 27, 2009

 

Atchison, Kansas

 

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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