Exhibit 10.5
LLC UNIT PLEDGE AGREEMENT
This LLC Unit Pledge Agreement (the
“Agreement”) is made effective as of May 31, 2005,
between and among B-New, LLC, an Ohio limited liability company
(“BNEW”), TechCom Group, LLC, a Florida limited
liability company (“TechCom”), Buhler, Inc., a
Minnesota corporation (“Buhler”), (individually a
“Pledgor” and collectively the “Pledgors”),
and Dakota Growers Pasta Company, Inc . , a North Dakota
corporation (hereinafter the “Lender”).
W I T N E S S E T
H
WHEREAS , the Lender and DNA Dreamfields Company, LLC
(the “Borrower”) have entered into a 2005 Line of
Credit Loan Agreement dated as of this date (as the same may be
amended, restated, renewed or supplemented, from time to time, the
“Loan Agreement”), pursuant to which the Lender will
extend a line of credit to the Borrower;
WHEREAS , the Lender requires, as a condition to the
extension of credit to the Borrower that the Pledgors each pledge
all of their right, title and interest in and to all LLC units they
own that represent ownership in the Borrower to secure the
obligations of the Pledgor;
WHEREAS, the Pledgors by this Agreement each agree that
all limited liability company units issued by the Borrower to each
Pledgor shall be pledged and provided as collateral security for
the payment and performance of the obligations of the Borrower to
the Lender, with such limited liability company units being
referred to hereinafter as the “Pledged Units”;
and
WHEREAS , the Lender would not be willing to extend
credit unless the Pledgor shall have pledged the Pledged Units to
the Lender pursuant to this Agreement.
NOW, THEREFORE
, in consideration of the premises
and mutual covenants herein contained, and in further consideration
of the Lender’s extension of credit to the Borrower, the
parties hereby agree as follows:
Section 1 - Pledge
. The Pledgor hereby pledges and assigns to the Lender, and
grants to the Lender a continuing security interest in, the
following (the “Pledged Collateral”):
(i)
The Pledged Units and the
certificates, if any, representing the Pledged Units, and all
dividends or distributions and cash, instruments and other property
from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of the Pledged
Units;
(ii)
All additional limited liability
company units of the Borrower from time to time acquired by the
Pledgor by stock split or by the exercise of any conversion or
option rights, and the certificates representing such additional
shares, and all dividends, cash, instruments and other property
from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of such shares;
and
(iii)
Any and all proceeds of any of the
foregoing upon the sale or other disposal of the foregoing for any
reason.
The certificates for the Pledged
Units accompanied by instruments of assignment duly executed in
blank by the Pledgor have been delivered to the Pledgee.
Section 2 - Security for
Obligations . This Agreement secures the payment of all
obligations or liabilities of the Borrower now or hereafter
existing under the Loan Agreement (all such obligations being
referred to as the “Obligations”).
Section 3 - Further
Assurances . The Pledgor agrees that at any time and from
time to time, at the expense of the Pledgor, the Pledgor will
promptly execute and deliver all further instruments and documents,
and take all further action, that may be reasonably necessary or
desirable, or that the Lender may reasonably request, in order to
perfect and protect any security interest granted or purported to
be granted hereby or to enable the Lender to exercise and enforce
its rights and remedies hereunder with respect to any Pledged
Collateral.
Section 4 - Voting Rights;
Dividends; Etc . So long as no Event of Default (as
defined in the Loan Documents) exists and is continuing:
(i)
The Pledgor shall be entitled to
exercise any and all voting and other consequential rights
pertaining to the Pledged Collateral or any part thereof for any
purpose not inconsistent with the terms of this Agreement or the
Loan Documents; provided, however, that, prior to exercising
any material right as a unitholder, the Pledgor shall first give
the Lender at least five days’ written notice of the manner
in which the Pledgor intends to exercise, or the reasons for
refraining from exercising, any right as a shareholder and shall
not exercise any such right if the exercise of such right could
constitute an Event of Default.
(ii)
The Pledgor shall be entitled to
receive and retain any and all cash distributions or dividends paid
in respect of the Pledged Collateral that may be permitted under
and in accordance with the Loan Documents.
Section 5 - Transfers and
Other Liens; Additional Shares . The Pledgor agrees that,
subject to the terms and conditions of the Amended and Restated
Operating Agreement of the Borrower, it may sell, transfer or
otherwise dispose of, or grant any option to buy or sell with
respect to, any of the Pledged Collateral, subject to this
Agreement. However the Pledgor shall not create or permit to
exist any lien, security interest, or other charge or encumbrance
upon or with respect to any of the Pledged Collateral, except for
the security interest under this Agreement.
Section 6 - Lender Appointed
Attorney-in-Fact . The Pledgor hereby appoints the Lender
attorney-in-fact, with full authority in the place and stead of the
Pledgor and in the name of the Pledgor or otherwise, to take any
action and to execute any instr
