FOURTH AMENDMENT TO CREDIT AGREEMENT
Exhibit
4.1
FOURTH
AMENDMENT TO CREDIT AGREEMENT
This Fourth Amendment to Credit
Agreement (the "Amendment") is made
as of February 27, 2009, by and among MGP Ingredients, Inc., a Kansas
corporation ("MGP"), Midwest Grain
Pipeline, Inc., a Kansas corporation ("Midwest Grain"),
Commerce Bank, N.A., as Agent, Issuing Bank and Swingline Lender under the
Credit Agreement referred to below, and the Banks party to the Credit Agreement
referred to below. MGP and Midwest Grain are each referred to herein
as a "Borrower"
and are collectively referred to herein as the "Borrowers." The
Banks, the Agent, the Issuing Bank and the Swingline Lender are each referred to
herein as a "Bank
Party" and are collectively referred to herein as the "Bank
Parties."
Preliminary
Statements
(a) The
Borrowers and the Bank Parties are parties to a Credit Agreement dated as of May
5, 2008, as amended by (i) a First Amendment to Credit Agreement dated as of
September 3, 2008, and a letter agreement dated October 31, 2008, (ii) a Second
Amendment to Credit Agreement dated as of November 7, 2008, and (iii) a Third
Amendment to Credit Agreement dated as of December 19, 2008 (as so amended, the
"Credit
Agreement"). Capitalized terms used and not defined in this
Amendment have the meanings given to them in the Credit Agreement.
(b) The
Borrowers have defaulted on certain of their obligations under the Credit
Agreement and have requested that the Banks forebear from exercising certain
rights and remedies they would otherwise have because of such defaults and that
certain provisions of the Credit Agreement be modified in certain
respects.
(c) The
Bank Parties are willing to agree to the foregoing requests by the Borrowers,
subject, however, to the terms, conditions and agreements set forth in this
Amendment.
NOW, THEREFORE, for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
Acknowledgement of Defaults
and Banks' Rights. The Borrowers acknowledge and agree that:
(a) the Borrowers have failed to comply with their obligations under the Credit
Documents and that, as a result, Designated Defaults have occurred and are
continuing under the Credit Agreement; and (b) because of the Designated
Defaults, and but for the Bank Parties' agreements set forth in Section 3.19 of
the Credit Agreement, as amended hereby, the Bank Parties have the present legal
right (i) to stop making Loans and other credit extensions under the Credit
Documents, (ii) to accelerate the maturity of the Obligations, and (iii) to
exercise all other rights or remedies available to the Bank Parties upon the
occurrence of an Event of Default.
Forbearance.
Standstill Period Expiration
Date. The reference to "February 27, 2009" in Section 3.19 of
the Credit Agreement is amended to read "March 13, 2009".
Related
Definitions. Section 1.1 of the Credit Agreement is amended to
add or amend, as the case may be, the following definitions:
"Designated Default"
means any Default or Event of Default disclosed in writing to the Agent
(including, without limitation, pursuant to one or more Borrowing Base
Certificates and/or Compliance Certificates) prior to the Fourth Amendment
Closing Date (including, without limitation, the First Amendment Designated
Defaults, the Second Amendment Designated Defaults and the Events of Default
specified in the January 30, 2009 Notice of Default given by the Agent to the
Borrowers).
"Forbearance Default"
means: (a) a Borrower's failure to pay, perform or observe any of its
obligations under the Fourth Amendment in accordance with the terms thereof; or
(b) the existence or occurrence of any Default or Event of Default other than a
Designated Default.
"Fourth Amendment"
means the Fourth Amendment to Credit Agreement, dated on or about the Fourth
Amendment Closing Date, among the Borrowers, the Agent, the Issuing Bank, the
Swingline Lender and the other Banks.
"Fourth Amendment Closing
Date" means February 27, 2009.
Delay of the Overadvance
Step-down. Each reference to "February 26, 2009" in the
definition of Overadvance Amount in Section 1.1 of the Credit Agreement is
amended to be a reference to "March 13, 2009".
Reduction of the
Commitments. Exhibit A to the Credit Agreement is replaced by
Exhibit A to this Amendment.
Elimination of the Reserve
Amount. Sections 3.4(e) (Reserve Amounts Tax Refunds), 3.6(d)
(Reserve Amount Proceeds) and 3.21 (Reserve Against Revolving Credit
Availability) are deleted from the Credit Agreement.
Engagement of Xxxxxx
Advisors. The Borrowers hereby (a) consent to the Bank Parties
retaining Xxxxxx Advisors to advise the Bank Parties regarding the Borrowers and
the Operating Plan (as defined below), (b) waive any confidentiality or other
issues necessary for such engagement of Xxxxxx Advisors by the Bank Parties in
light of their prior engagement by the Borrowers, (c) agree to provide Xxxxxx
Advisors full access to their books and records, management and consultants
necessary or appropriate for Xxxxxx Advisors to fulfill such engagement by the
Bank Parties and (d) agree to pay all fees and expenses of Xxxxxx Advisors in
connection with such engagement by the Bank Parties.
Preparation of an Operating
Plan. The Borrowers hereby agree that, on or before March 6,
2009, they will prepare and provide the Agent with an operating plan (in form,
detail and substance reasonably acceptable to the Agent) which clearly outlines
how the Borrowers will improve their financial position with the ultimate goal
being the repayment of all Obligations. This operating plan will
contain, but will not be limited to, both an updated 13-week cash flow
projection and a six-month, month-by-month cash flow projection, each of which
considers additions to capital, new financing arrangements and proceeds from
asset sales.
No Other Amendments; No
Waiver. Except as amended hereby, the Credit Agreement and the
other Credit Documents shall remain in full force and effect and be binding on
the parties in accordance with their respective terms. Nothing in
this Amendment shall constitute a waiver by any of the Bank Parties of any
Default or Event of Default which may exist on the date hereof, and nothing
herein shall require any Bank Party to waive any Default or Event of Default
which may arise hereafter. Nothing herein shall act to release any
Lien on any Collateral or limit the scope or amount of the obligations secured
thereby.
Reaffirmation of Credit
Documents. Each Borrower reaffirms its obligations under the
Credit Agreement, as amended hereby, and the other Credit Documents to which it
is a party or by which it is bound, and represents, warrants and covenants to
the Bank Parties, as a material inducement to the Bank Parties to enter into
this Amendment, that: (a) such Borrower has no and in any event waives any
defense, claim or right of setoff with respect to its obligations under, or in
any other way relating to, the Credit Agreement, as amended hereby, or any of
the other Credit Documents to which it is a party, or any Bank Party's actions
or inactions in respect of any of the foregoing, and (b) except as otherwise
expressly provided in this Amendment, all representations and warranties made by
such Borrower in the Credit Agreement or the other Credit Documents to which it
is a party are true and complete on the date hereof as if made on the date
hereof.
Representations and
Warranties. Each Borrower represents and warrants to the Bank
Parties as follows: (a) it is a validly existing corporation and has
full corporate power and authority to enter into this Amendment and any
documents or transactions contemplated hereby and to pay and perform any
obligations it may have in respect of the foregoing; (b) its execution, delivery
and performance of this Amendment and any documents or transactions contemplated
hereby do not violate or conflict with, or require any consent under, (1) its
organizational documents or any other agreement or document relating to its
formation, existence or authority to act, (2) any agreement or instrument by
which it or any its properties is bound, (3) any court order, judicial
proceeding or any administrative or arbitral order or decree, or (4) any
applicable law, rule or regulation; and (c) no authorization, approval or
consent of or by, and no notice to or filing or registration with, any
governmental authority or other Person is necessary for it to enter into this
Amendment or any document or transaction contemplated hereby or to perform any
of its obligations with respect to any of the foregoing.
Release of Bank
Parties. Without limiting any other provision of this
Amendment, each Borrower, on behalf of itself and any officers, directors,
agents, attorneys, employees, representatives, affiliates, successors and
assigns it may have and anyone claiming through or under it (collectively, with
respect to all Borrowers, the "Releasing Parties"),
hereby releases, remises and acquits each Bank Party, and its officers,
directors, agents, attorneys, employees, representatives, affiliates, successors
and assigns and anyone claiming through or under it (collectively, with respect
to all Bank Parties, the "Released Parties"),
from all manners of action, causes of action, claims and demands of every kind
and nature whatsoever, whether known or unknown, fixed or contingent, liquidated
or unliquidated, as of the date of this Amendment, that any of the Releasing
Parties had or may have against any of the Released Parties.
Conditions Precedent to
Amendment. Unless and to the extent the Agent waives the
benefits of this sentence by giving written notice thereof to the Borrowers, the
Bank Parties shall have no duties under this Amendment, nor shall any
extensions, waivers or other concessions by the Bank Parties under this
Amendment be effective, in each case until the Agent has received fully executed
originals of each of the following, each in form and substance satisfactory to
the Agent:
Amendment. This
Amendment;
Fees. All fees due
and payable on or before the Fourth Amendment Closing Date; and
Other. Such other
documents, consents, agreements or other items as the Agent may reasonably
request.
Joint and Several
Liability. Notwithstanding anything in this Amendment to the
contrary, each Borrower's representations, warranties and covenants under this
Amendment (and under the other Credit Documents as amended hereby) shall be the
joint and several representations, warranties and covenants of all
Borrowers.
Expenses. The
Borrowers shall pay the reasonable out-of-pocket legal fees and expenses
incurred by the Agent, the Banks and their representatives in connection with
the preparation and closing of this Amendment and any other documents referred
to herein and the consummation of any transactions referred to herein or
therein.
Governing
Law. This Amendment shall be governed by the same law that
governs the Credit Agreement.
Counterparts; Fax
Signatures. This Amendment may be executed in one or more
counterparts and by different parties thereto, all of which counterparts, when
taken together, shall constitute but one agreement. This Amendment
may be validly executed and delivered by fax, e-mail or other electronic means
and any such execution or delivery shall be fully effective as if executed and
delivered in person.
[signature
page(s) to follow]
IN WITNESS WHEREOF, the parties have
entered into this Amendment as of the date first above written.
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MGP
INGREDIENTS, INC.
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By: /s/ Xxxxxx Xxxxxxxxx
Name:
Xxxxxx ZonneveldTitle: V.P. & C.F.O.
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MIDWEST
GRAIN PIPELINE, INC.
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By: /s/ Xxxxxx Xxxxxxxxx
Name:
Xxxxxx ZonneveldTitle: V.P. & C.F.O.
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COMMERCE
BANK, N.A.,
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|
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as
Agent, Issuing Bank, Swingline Lender and a
Bank
|
By: /s/ Xxxxx X. Xxxxxxx
Name:Xxxxx
X. Xxxxxxx
Title:
Vice President
|
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BMO
CAPITAL MARKETS FINANCING, INC.,
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as a Bank
By: /s/ Xxxxx X. Xxxxxxxxx
Name:
Xxxxx X. Xxxxxxxxx
Title:
Vice President
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NATIONAL
CITY BANK,
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as a Bank
By: /s/ Xxxxxxx Xxxxx
Name:
Xxxxxxx Xxxxx
Title:
Vice President
Exhibit
A
(Banks
and Commitments)
|
Bank
|
Revolving
Credit Commitment
|
Letter
of Credit Commitment*
|
Swingline
Loan Commitment*
|
Bank's
Total Commitment
|
|
Commerce
Bank, N.A.
|
$
15,400,000
|
$
3,080,000
|
$
5,000,000
|
$
15,400,000
|
|
BMO
Capital Markets Financing, Inc.
|
$
12,300,000
|
$
2,460,000
|
0
|
$
12,300,000
|
|
National
City Bank
|
$
12,300,000
|
$
2,460,000
|
0
|
$
12,300,000
|
|
Totals:
|
$
40,000,000
|
$
8,000,000
|
$
5,000,000
|
$
40,000,000
|
* As
more particularly described in the Agreement, the Letter of Credit Commitment
and the Swingline Loan Commitment are each subcommitments under the Total
Revolving Credit Commitment. Accordingly, extensions of credit under
the Letter of Credit Commitment or the Swingline Loan Commitment act to reduce,
on a dollar-for-dollar basis, the amount of credit otherwise available under the
Total Revolving Credit Commitment.
