SECOND AMENDMENT TO SECURITY AGREEMENT
Exhibit
4.2
SECOND
AMENDMENT TO SECURITY AGREEMENT
This Second Amendment to Security
Agreement (the "Amendment") is made
as of November 7, 2008, among MGP Ingredients, Inc., a Kansas corporation
("MGP"), and
Midwest Grain Pipeline, Inc., a Kansas corporation ("Midwest Grain") (each
a "Borrower"
and, collectively, the "Borrowers"), and
COMMERCE BANK, N.A., a national banking association, in its capacity as Agent
under the Credit Agreement referred to below (in such capacity, the "Agent").
Preliminary
Statements
(a) The
Borrowers have entered into a Credit Agreement, dated as of May 5, 2008, with
Commerce Bank, N.A., as the Agent, Issuing Bank and Swingline Lender, and the
Banks from time to time party thereto (the "Original Credit
Agreement"), which Original Credit Agreement has been amended pursuant to
a First Amendment to Credit Agreement dated as of September 3, 2008, a letter
agreement dated October 31, 2008, and a Second Amendment to Credit Agreement
dated on or about the date hereof (as so amended, and as otherwise amended,
renewed, restated, replaced or otherwise modified from time to time, the "Credit
Agreement").
(b) In
connection with the Original Credit Agreement, the Borrowers and the Agent
entered into a Security Agreement, dated as of May 5, 2008, pursuant to which
each Borrower granted to the Agent, for the benefit of the Banks, as security
for the Obligations, a security interest in certain of its existing and future
personal property, as amended by a First Amendment to Security Agreement dated
as of September 3, 2008 (as so amended, the "Security
Agreement").
(c) Pursuant
to the above-referenced Second Amendment to Credit Agreement, the Borrowers have
agreed to amend the Security Agreement to provide the Agent, on behalf of the
Banks, additional collateral as security for the Obligations, all as more
particularly described below.
NOW, THEREFORE, in consideration of the
foregoing and other good and valuable consideration, the receipt and sufficiency
of which are acknowledged, the parties agree as follows:
1. Definitions. Terms
used and not defined in this Amendment have the meanings given to them in the
Credit Agreement.
2. Additional
Collateral. Section 2 of the Security Agreement is amended to
read as follows:
2. Security
Interest. Each Borrower grants to the Agent, for the benefit
of the Banks, a security interest in all of such Borrower's right, title and
interest in and to the following (whether such property or such Borrower's
right, title or interest therein or thereto is now owned or existing or
hereafter acquired or arising, and wherever such property may be located): all
personal property of such Borrower, including, without limitation, all
Inventory, Equipment, other Goods, Accounts, General Intangibles, Chattel Paper,
Instruments (including, without limitation, Promissory Notes), Investment
Property, Documents, Deposit Accounts, Letter-of-Credit Rights and, to the
extent not listed above as original collateral, all Proceeds of the foregoing,
but specifically excluding the Excluded Assets (collectively, the "Collateral"). Capitalized
terms used in this Section and not defined elsewhere in this Agreement have the
meanings given to them in Article 9 of the Uniform Commercial Code as in effect
in the State of Missouri from time to time; and terms defined in the singular
are to have corresponding meaning
when used
in the plural and vice versa. "Excluded Assets" has
the meaning given to such term in the Credit Agreement.
3. No Other
Amendments. Except as amended hereby, the Security Agreement
shall remain in full force and effect and be binding on the parties in
accordance with its terms. All references in the Security Agreement
to the Security Agreement shall be deemed to refer to the Security Agreement as
amended hereby.
4. Expenses. The
Borrowers shall pay the reasonable out-of-pocket legal fees and expenses
incurred by the Agent 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.
5. Joint and Several
Liability. All representations, warranties and covenants of
the Borrowers under this Amendment shall be joint and several.
6. Governing Law. This
Amendment shall be governed by the same law that governs the Security
Agreement.
7. 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.
8. Miscellaneous. No
waiver of any provision of this Amendment nor consent to any departure by any
Borrower herefrom shall be effective unless the same shall be in writing and
signed by the Agent, and then such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which
given. The section headings herein are solely for convenience and
shall not be deemed to limit or otherwise affect the meaning or scope of any
part of this Amendment. This document shall be construed without
regard to any presumption or rule requiring construction against the party
causing such document or any portion thereof to be drafted. If any
provision of this Amendment shall be unlawful, then such provision shall be null
and void, but the remainder of this Amendment shall remain in full force and
effect and be binding on the parties.
[signature
page(s) to follow]
IN WITNESS WHEREOF, the parties have
executed and delivered this Amendment as of the date first written
above.
MGP
INGREDIENTS, INC.
By: /s/ Xxxxxx
Xxxxxxxxx
Name:
Xxxxxx Xxxxxxxxx
Title: VP
Finance & CFO
MIDWEST GRAIN PIPELINE,
INC.
By : /s/ Xxxxxx Xxxxxxxxx
Name:
Xxxxxx Xxxxxxxxx
Title: VP
Finance & CFO
COMMERCE BANK, N.A., as
Agent
By: /s/ Xxxxx X.
Xxxxx
Name:
Xxxxx X. Xxxxx
Title:
Vice President
