Exhibit 4.4.3
PLEDGE AND SECURITY
AGREEMENT
This PLEDGE AND SECURITY AGREEMENT
(this “ Agreement ”), executed and
delivered as of the 15th day of April , 2009, by MGP
INGREDIENTS, INC. , a Kansas corporation (“
Pledgor ”), in favor of NATIONAL CITY
BANK , a national banking association (“
Bank ”). The following recitals form the
basis for this Agreement and are made a material part
hereof:
A.
Pledgor is the registered and
beneficial owner and holder of that certain Taxable Industrial
Revenue Bond Series 2006 (MGP Ingredients Project)
(No. R.1) in the principal amount of $7,000,000 (the
“Bond”) issued by the City of Atchison, Kansas (the
“City”) pursuant to that certain Trust Indenture dated
as of December 28, 2006 (the “Indenture”) between
the City and Commerce Bank, N.A., as Trustees.
B.
Bank has agreed to make a loan in
the total amount of up to $3,000,000.00 (the “
Loan ”) to Pledgor, evidenced by that certain
promissory note in the original principal amount of the Loan, dated
the date hereof, and further described in that certain Loan
Agreement, dated as of the date hereof, between Borrower and Bank
(as amended from time to time, the “ Loan
Agreement ”).
C.
To secure further the payment and
performance of Borrower’s Obligations, Bank has requested
that Pledgor execute and deliver this Agreement in favor of
Bank.
NOW, THEREFORE, in consideration of
the foregoing, Pledgor agrees with Bank as follows:
I. DEFINITIONS AND
TERMS
1.1
The following words, terms and
phrases shall have the meanings set forth thereafter and such
meanings shall be applicable to the singular and plural form
thereof, giving effect to the numerical difference, whenever the
context so requires.
“ Collateral
” is defined in Paragraph 2.1 below.
“ Event of
Default ” is defined in Paragraph 4.1
below.
“ Supplemental
Documentation ” is defined in Paragraph 2.2
below.
1.2
Except as otherwise expressly
defined in this Agreement, capitalized terms in this Agreement
shall have the meaning provided in the Loan Agreement, and if not
defined therein, by the applicable definition therefor (if any) in
the Uniform Commercial Code as adopted by the State of
Kansas.
II. COLLATERAL:
GENERAL TERMS
2.1
To secure the prompt payment and
performance of Borrower’s Obligations, Pledgor grants to Bank
a security interest in and to, and pledges and assigns to Bank, all
of Pledgor’s now owned and hereafter acquired right, title,
share and interest in, to and under the Bond. All of the
foregoing are referred to herein collectively as the “
Collateral ”.
2.2
Pledgor shall execute and deliver to
Bank upon request, at any time and from time to time hereafter, all
agreements, instruments, documents and other written matter (the
“ Supplemental Documentation ”) that Bank
may reasonably request, in form and substance acceptable to Bank,
including, without limitation, delivering the original Bond to
Bank, endorsed to Bank by means of the form of Assignment attached
hereto, to perfect and maintain Bank’s security interest,
lien and encumbrance in the Collateral and to consummate the
transactions contemplated in or by this Agreement and the Loan
Agreement.
2.3
Pledgor warrants and represents to
and covenants with Bank as follows:
(a)
Provided Bank takes such actions as
are required under state law to perfect a security interest in the
Collateral, Bank’s security interest in the Collateral is now
and at all times hereafter shall be perfected and have a first
priority, and the exercise by Bank of its rights hereunder, is not
and shall not be a default under the Bond or result in any defense,
set-off of counterclaims asserted by any Person under the
Bond.
(b)
Pledgor agrees to mail or deliver to
Bank copies of any and all notices which Pledgor may from time to
time give to or serve upon the City pursuant to the provisions of
the Indenture, the Lease between the City as Issuer and Pledgor as
Tenant dated as of the issue date of the Bond (the
“Lease”), pursuant to which Pledgor agreed to pay rent
in an amount sufficient to pay principal, interest and other
payments on the Bond, and other documents executed by Pledgor in
connection with the Bond, the Indenture or the Lease (collectively,
the “Bond Documents”). Such copy shall be mailed
or delivered to Bank simultaneously with the mailing or delivery to
City.
(c)
Pledgor will enforce the obligations
of the City under the Bond Documents and will promptly notify Bank,
in writing, of any material default under the Bond Documents.
Pledgor will immediately deliver to Bank a copy of any notice given
or received by Pledgor under or relating to any of the Bond
Documents.
(d)
If any action shall be commenced by
Pledgor in respect of the Bond or the Bond Documents, then Bank
shall have the option, exercisable upon notice from Bank to
Pledgor, to conduct and control any such litigation with counsel of
Bank’s choice and reasonably acceptable to Pledgor.
Bank may proceed in its own name or in the name of Pledgor in
connection with any such litigation, and Pledgor agrees to execute
any and all powers, consents or other documents required by Bank in
connection therewith. Pledgor shall reimburse Bank for all of
Bank’s out-of-pocket expenses incurred in connection with any
such litigation, including Bank’s attorneys’ fees and
expenses.
III. COLLATERAL: THE
BOND
3.1
Pledgor warrants and represents to
Bank that the Bond is being delivered to Bank concurrently herewith
accompanied by an appropriate assignment relating thereto in blank
by Pledgor. Pledgor, from time to time hereafter, shall
assign any additional or replacement Bond which becomes subject to
this Agreement pursuant to the provisions hereof to Bank in a form
reasonably acceptable to Bank. Such additional or replacement
Bond shall be delivered to Bank accompanied with an assignment
thereof duly executed by Pledgor in form reasonably acceptable to
Bank in blank by Pledgor.
3.2
Bank may now, or at any time or
times after an Event of Default occurs, transfer the Bond into the
name of Bank, or into the name of Bank’s nominee, without
disclosing that such Bond so
2
transferred are pledged or
hypothecated, and without any indication on any new bond or other
document issued to evidence such obligations, that
