Exhibit 4.4
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LOAN NUMBER
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LOAN NAME
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ACCT. NUMBER
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NOTE DATE
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INITIALS
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MGP INGREDIENTS, INC -
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04/15/09
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DMW/CML
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NOTE AMOUNT
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INDEX (w/Margin)
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RATE
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MATURITY DATE
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LOAN PURPOSE
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$
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2,800,000.00
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Not Applicable
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7.000
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%
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09/03/09
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Commercial
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Creditor Use Only
PROMISSORY NOTE
(Commercial - Single Advance)
DATE
AND PARTIES. The date of
this Promissory Note (Note) is April 15, 2009. The parties and their addresses are:
LENDER:
EXCHANGE NATIONAL BANK & TRUST CO.
600 COMMERCIAL ST
ATCHISON, Kansas 66002
Telephone: 913-387-6000
BORROWER:
MGP INGREDIENTS, INC
a Kansas Corporation
P O BOX 130
ATCHISON, KS 66002
1. DEFINITIONS. As used in this
Note, the terms have the following meanings:
A. Pronouns. The pronouns “I,” “me,” and “my” refer to
each Borrower signing this Note, individually and together. “You” and “Your”
refer to the, Lender.
B. Note. Note refers to this document, and any
extensions, renewals, modifications and substitutions of this Note.
C. Loan. Loan refers to this transaction generally,
including obligations and duties arising from the terms of all documents
prepared or submitted for this transaction such as applications, security
agreements, disclosures or notes, and this Note.
D. Loan Documents. Loan Documents refer
to all the documents executed as a part of or in connection with the Loan.
E. Property. Property is any property, real, personal or
intangible, that secures my performance of the obligations of this Loan.
F. Percent. Rates and rate change limitations are
expressed as annualized percentages.
2. PROMISE TO PAY. For value received,
I promise to pay you or your order, at your address, or at such other location
as you may designate, the principal sum of $2,800,000.00 (Principal) plus interest
from April 15, 2009 on the unpaid Principal balance until this Note
matures or this obligation is accelerated.
3. INTEREST. Interest will accrue
on the unpaid Principal balance of this Note at the rate of 7.000 percent
(Interest Rate).
A. Post-Maturity Interest. After maturity or
acceleration, interest will accrue on the unpaid Principal balance of this Note
at the Interest Rate in effect from time to time, until paid in full.
B. Maximum Interest Amount. Any amount assessed
or collected as interest under the terms of this Note will be limited to the
maximum lawful amount of interest allowed by state or federal law, whichever is
greater. Amounts collected in excess of
the maximum lawful amount will be applied first to the unpaid Principal
balance. Any remainder will be refunded to me.
C. Statutory Authority. The amount assessed
or collected on this Note is authorized by the Kansas usury laws under Kan.
Stat. Ann. § 16-207.
D. Accrual. Interest accrues using an Actual/365 days
counting method.
4. REMEDIAL CHARGES. In addition to
interest or other finance charges, I agree that I will pay these additional
fees based on my method and pattern of payment.
Additional remedial charges may be described elsewhere in this Note.
A. Late Charge. If a payment is more than 10 days late, I
will be charged 5.000 percent of the Unpaid Portion of Payment. I will pay this late charge promptly but only
once for each late payment.
B. Returned Payment Charges. A(n) Returned
Payment Charges equal to $30.00.
5. PAYMENT. I agree to pay this
Note in installments of accrued interest beginning May 3, 2009, and then
on the 3rd day of each month thereafter.
I agree to pay the entire unpaid Principal and any accrued but unpaid
interest on September 3, 2009.
Payments
will be rounded to the nearest $.01.
With the final payment I also agree to pay any additional fees or
charges owing and the amount of any advances you have made to others on my
behalf. Payments scheduled to be paid on
the 29th, 30th or 31st day of a month that contains no such day will, instead,
be made on the last day of such month.
Each
payment I make on this Note will be applied first to Interest that is due, then
to principal that is due, and finally to any charges that I owe other than
principal and finance charges. If you
and I agree to a different application of payments, we will describe our
agreement on this Note. You may change
how payments are applied in your sole discretion without notice to me. The actual amount of my final payment will depend
on my payment record.
6. PREPAYMENT. I may prepay this
Loan in full or in part at any time. Any
partial prepayment will not excuse any later scheduled payments until I pay in
full.
7. LOAN PURPOSE. This is a
business-purpose loan transaction.
8. SECURITY. The Loan is secured
by separate security instruments prepared together with this Note as follows:
A LEASEHOLD MORTGAGE DATED
APRIL 15, 2009 ON THE PROPERTY LOCATED AT 100 COMMERCIAL ST AND 200 COMMERCIAL
ST; ATCHISON, KS.
A MORTGAGE DATED APRIL 15,
2009 ON THE PROPERTY LOCATED AT 1301 SOUTH FRONT STREET; PEKIN, IL.
A PLEDGE AND SECURITY
AGREEMENT RELATING TO THE BOND ISSUED TO BORROWER IN CONNECTION WITH ISSUANCE
BY THE CITY OF ATCHISON, KANSAS OF ITS TAXABLE INDUSTRIAL REVENUE BONDS (MGP
INGREDIENTS PROJECT), SERIES 2006.
9. DEFAULT. I will be in default
if any of the following occur:
A. Payments. I fail to make a payment in full when due.
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MGP
INGREDIENTS, INC.
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Kansas
Promissory Note
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Initials
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KS/4CHRISTIN00000000000111050041309N
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©1996
Bankers System, Inc., St. Cloud, MN 
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1
B. Insolvency or Bankruptcy. The death,
dissolution or insolvency of, appointment of a receiver by or on behalf of,
application of any debtor relief law, the assignment for the benefit of
creditors by or on behalf of, the voluntary or involuntary termination of
existence by, or the commencement of any proceeding under any present or future
federal or state insolvency, bankruptcy, reorganization, composition or debtor
relief law by or against me or any co-signer, endorser, surety or guarantor of
this Note or any other obligations I have with you.
C. Business Termination. I merge, dissolve,
reorganize, end my business or existence.
D. Failure to Perform. I fail to perform
any condition or to keep any promise or covenant of this Note.
E. Other Documents. A default occurs
under the terms of any other Loan Document.
F. Other Agreements. I am in default on
any other debt or agreement I have with you.
G. Misrepresentation. I make any verbal or
written statement or provide any financial information that is untrue,
inaccurate, or conceals a material fact at the time it is made or provided.
H. Judgment. I fail to satisfy or appeal any judgment
against me.
I. Forfeiture. The Property is used in a manner or for a
purpose that threatens confiscation by a legal authority.
J. Name Change. I change my name or assume an additional name
without notifying you before making such a change.
K. Property Transfer. I transfer all or a
substantial part of my money or property.
L. Property Value. You determine in
good faith that the value of the Property has declined or is impaired.
M. Material Change. Without first
notifying you, there is a material change in my business.
N. Insecurity. You determine in good faith that a material
adverse change has occurred in my financial condition from the conditions set
forth in my most recent financial statement before the date of this Note or
that the prospect for payment or performance of the Loan is impaired for any
reason.
10. DUE ON SALE OR
ENCUMBRANCE. You may, at your option, declare the entire
balance of this Note to be immediately due and payable upon the creation of, or
contract for the creation of, any lien, encumbrance, transfer or sale of all or
any part of the Property. This right is
subject to the restrictions imposed by federal law (12 C.F.R. 591), as
applicable.
11. WAIVERS AND
CONSENT. To the extent not prohibited by law, I waive
protest, presentment for payment, demand, notice of acceleration, notice of
intent to accelerate and notice of dishonor.
A. Additional Waivers By Borrower. In addition, I, and
any party to this Note and Loan, to the extent permitted by law, consent to
certain actions you may take, and generally waive defenses that may be
available based on these actions or based on the status of a party to this
Note.
(1) You may renew or extend payments on this Note, regardless of the
number of such renewals or extensions.
(2) You may release any Borrower, endorser, guarantor, surety,
accommodation maker or any other co-signer.
(3) You may release, substitute or impair any Property securing this
Note.
(4) You, or any institution participating in this Note, may invoke
your right of set-off.
(5) You may enter into any sales, repurchases or participations of
this Note to any person in any amounts and I waive notice of such sales,
repurchases or participations.
(6) I agree that any of us signing this Note as a Borrower is
authorized to modify the terms of this Note or any instrument securing,
guarantying or relating to this Note.
B. No Waiver By Lender. Your course of
dealing, or your forbearance from, or delay in, the exercise of any of your
rights, remedies, privileges or right to insist upon my strict performance of
any provisions contained in this Note, or any other Loan Document, shall not be
construed as a waiver by you, unless any such waiver is in writing and is
signed by you.
12. REMEDIES. After I default, you
may at your option do any one or more of the following.
A. Acceleration. You may make all or any part of the amount
owing by the terms of this Note immediately due.
B. Sources. You may use any and all remedies you have
under state or federal law or in any Loan Document.
C. Insurance Benefits. You may make a claim
for any and all insurance benefits or refunds that may be available on my
default.
D. Payments Made On My Behalf. Amounts advanced on
my behalf will be immediately due and may be added to the balance owing under
the terms of this Note, and accrue interest at the highest post-maturity
interest rate.
E. Set-Off. You may use the right of set-off. This means you may set-off any amount due and
payable under the terms of this Note against any right I have to receive money
from you.
My
right to receive money from you includes any deposit or share account balance I
have with you; any money owed to me on an item presented to you or in your
possession for collection or exchange; and any repurchase agreement or other
non-deposit obligation. “Any amount due
and payable under the terms of this Note” means the total amount to which you
are entitled to demand payment under the terms of this Note at the time you
set-off.
Subject
to any other written contract, if my right to receive money from you is also
owned by someone who has not agreed to pay this Note, your right of set-off
will apply to my interest in the obligation and to any other amounts I could
withdraw on my sole request or endorsement.
Your
right of set-off does not apply to an account or other obligation where my
rights arise only in a representative capacity.
It also does not apply to any Individual Retirement Account or other
tax-deferred retirement account.
You
will not be liable for the dishonor of any check when the dishonor occurs
because you set-off against any of my accounts.
I agree to hold you harmless from any such claims arising as a result of
your exercise of your right of set-off.
F. Waiver. Except as otherwise required by law, by
choosing any one or more of these remedies you do not give up your right to use
any other remedy. You do not waive a
default if you choose not to use a remedy.
By electing not to use any remedy, you do not waive your right to later
consider the event a default and to use any remedies if the default continues
or occurs again.
13. COLLECTION EXPENSES
AND ATTORNEYS’ FEES. On or after Default, to the extent permitted
by law, I agree to pay all expenses of collection, enforcement or protection of
your rights and remedies under this Note or any other Loan Document. Expenses include, but are not limited to,
attorneys’ fees, court costs and other legal expenses. These expenses are due and payable
immediately. If not paid immediately,
these expenses will bear interest from the date of payment until paid in full
at the highest interest rate in effect as provided for in the terms of this
Note. All fees and expenses will be
secured by the Property I have granted to you, if any. In addition, to the extent permitted by the
United States Bankruptcy Code, I agree to pay the reasonable attorneys’ fees
incurred by you to protect your rights and interests in connection with any
bankruptcy proceedings initiated by or against me.
14. COMMISSIONS. I understand and
agree that you (or your affiliate) will earn commissions or fees on any
insurance products, and may earn such fees on other services that I buy through
you or your affiliate.
15. WARRANTIES AND
REPRESENTATIONS. I made to you the following warranties and
representations which will continue as long as this note is in effect:
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