CONSENT AND WAIVER AGREEMENT Exhibit 4(a)
Dated as of January 23, 1996
Reference is made to the Note Agreement, dated as of August 1, 1993 (the "Note
Agreement"), by and among Midwest Grain Products, Inc. (the "Company") and
Principal Mutual Life Insurance Company ("Principal Mutual"). Pursuant to the
Note Agreement, the Company issued, and Principal Mutual purchased, senior notes
of the Company (collectively, the "Notes") in the aggregate original principal
amount of $25,000,000 due 2008. Capitalized terms used but not defined herein
shall have the meanings ascribed to them in the Note Agreement. By their
execution of this Consent and Waiver Agreement (the "Agreement") below, the
Company and Principal Mutual agree and consent to the following.
1. CONSENT. Principal Mutual consents to the inclusion of depreciation net
of major capital maintenance in the calculation of Net Income Available for
Fixed Charges for (and only for) the purpose of computation of the fixed charges
coverage ratio of Section 5.10 of the Note Agreement for each fiscal quarter of
the Company during the period beginning January 1, 1996 and ending December 31,
1996.
2. WAIVER. Principal Mutual agrees to waive compliance with Section 5.10
of the Note Agreement for the fiscal quarter of the Company ended December
31, 1995.
3. CONDITIONS PRECEDENT. The consent in paragraph 1 above and the waiver
in paragraph 2 above are expressly subject to and shall be effective only
upon the satisfaction of the following conditions.
3.1 The Company and Principal Mutual shall have executed this
Agreement.
3.2 As of the date of execution hereof by the Company, no Default or
Event of Default under the Note Agreement (except for any Default or Event of
Default which has been either waived by Principal Mutual or the subject of a
previous amendment to the Note Agreement) shall exist or be continuing, after
giving effect to the waiver and consent set forth herein.
3.3 The representations and warranties of the Company referred to in
Section 3.1 of the Note Agreement, shall be true and complete in all material
respects, as if made on and as of the date hereof (except as to those
representations and warranties which are made as of a specific date, which shall
be true and complete in all material respects as of such specific date, and
except as previously disclosed to Principal Mutual in writing).
3.4 The representations of the Company referred to in Section 4 hereof
shall be true and complete in all material respects.
4. REPRESENTATIONS OF THE COMPANY. The Company, by its execution
and delivery of this Agreement, hereby represents and warrants to Principal
Mutual as follows:
4.1 As of the date of this Agreement, no Default or Event of Default
under the Note Agreement, or under any other agreement to which the Company is
subject, exists or is continuing, after giving effect to the amendments and
waiver set forth herein.
4.2 The representations and warranties of the Company referred to in
Section 3.1 of the Purchase Agreement are true and correct and complete in all
material respects as if made on the date hereof, except as to those
representations and warranties made as of a specific date, which are true and
correct and materially complete as of such date.
4.3 No dissolution proceedings with respect to the Company have been
commenced or are contemplated, and there had been no material adverse change in
the business, conditions or operations (financial or otherwise) of the Company
and its Restricted Subsidiaries, taken as a whole since August 1, 1993, except
as previously disclosed to Principal Mutual.
4.4 This Agreement has been duly authorized, executed and delivered by
the Company and constitutes a legal, valid and binding obligation of the
Company.
5. MISCELLANEOUS.
5.1 It is expressly understood and agreed that this Agreement shall not
constitute either (a) a modification, alteration or amendment of the terms,
conditions, and covenants of the Note Agreement or the Notes, all of which shall
remain unchanged and in full force and effect, except as otherwise specifically
set forth herein, or (b) a waiver, release or limitation upon the exercise by
Principal Mutual of any of the rights, legal or equitable, present or future,
thereunder or with respect thereto, except as to matters as to which Principal
Mutual herein expressly consents or waives compliance and only for the relevant
time period set forth herein. Nothing herein is intended or shall be construed
to release or relieve the Company in any way or to any extent from any of the
obligations, covenants or agreements imposed upon the Company by the Note
Agreement or the Notes or otherwise, or from the consequences of any breach
thereof or default or event of default thereunder, except as to matters as to
which the undersigned expressly agree herein.
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5.2 This Agreement may be executed in as many counterparts as may be
deemed necessary or convenient and by the different parties hereto on separate
counterparts (provided that the Company will execute each counterpart), and each
of which, when so executed, shall be deemed to be an original, but all such
counterparts shall constitute but one and the same agreement.
5.3 This Agreement shall be deemed effective as of the date hereof,
provided that the provisions and the conditions precedent set forth in Section 3
hereof have been completely satisfied.
5.4 This Agreement (a) shall be binding on the parties hereto and their
respective successors and assigns and shall inure to the benefit of the parties
hereto and their respective successors and assigns, (b) constitutes the entire
agreement among the parties hereto with respect to the matters addressed herein,
and (c) shall be governed by and construed and enforced in accordance with the
laws of the State of Kansas.
Agreed and Acknowledged:
PRINCIPAL MUTUAL LIFE INSURANCE COMPANY
S/Xxxxx Xxxxx
By: ________________________
Xxxxx Xxxxx, Counsel
s/C Xxxxxxxxx
By: ________________________
C Xxxxxxxxx
MIDWEST GRAIN PRODUCTS, INC.
/s/ Xxxxxx x. Xxxx
By: ________________________
VP-CFO, 1-25-96
cjh\mwgrain.amd
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