Exhibit 4.8.6
SUBORDINATION AGREEMENT
Collateral means all collateral now or hereafter securing payment of the Senior Lender Indebtedness, including all proceeds thereof.
Credit Agreement means that certain Credit and Security Agreement dated as of July , 2009, by and between Ingredients and the Senior Lender as the same may hereafter be amended, supplemented or restated from time to time.
Lien means any security interest, mortgage, deed of trust, pledge, lien, charge, encumbrance, title retention agreement or analogous instrument or device, including the interest of each lessor under any capitalized lease and the interest of any bondsman under any payment or performance bond, in, of or on any assets or properties of a Person, whether now owned or hereafter acquired and whether arising by agreement or operation of law.
Senior Lender Indebtedness is used herein in its most comprehensive sense and means any and all advances, debts, obligations and liabilities of Ingredients to the Senior Lender, heretofore, now or hereafter made, incurred or created, whether voluntary or involuntary and however arising, whether due or not due, absolute or contingent, liquidated or unliquidated, determined or undetermined, including under any swap, derivative, foreign exchange, hedge, deposit, treasury management or other similar transaction or arrangement at any time entered into by the Ingredients with the Senior Lender, and whether the Borrower may be liable individually or jointly with others, or whether recovery upon such Indebtedness may be or hereafter becomes unenforceable.
Subordinated Indebtedness means all obligations arising under the Subordinated Note and each and every other debt, liability and obligation of every type and description which the Borrower may now or at any time hereafter owe to the Subordinated Creditor, whether such debt, liability or obligation now exists or is hereafter created or incurred, and whether it is or may be direct or indirect, due or to become due, absolute or contingent, primary or secondary, liquidated or unliquidated, or joint, several or joint and several.
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(d) Nothing contained herein will prevent Ingredients and Senior Lender from amending, modifying, restating and otherwise dealing with the Senior Lender Indebtedness in any manner Ingredients and Senior Lender deem necessary and/or desirable without notice to or consent of the Subordinated Creditor (the Modified Senior Lender Indebtedness). This Agreement shall remain fully applicable to such Modified Senior Lender Indebtedness and the Modified Senior Lender Indebtedness will be deemed the Senior Lender Indebtedness for all purposes hereunder.
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THE SECURITY INTEREST OF SECURED PARTY IN ALL OF THE COLLATERAL DESCRIBED IN THIS FINANCING STATEMENT IS SUBJECT TO A SUBORDINATION AGREEMENT DATED JULY , 2009 BETWEEN SECURED PARTY AND WELLS FARGO BANK, NATIONAL ASSOCIATION (WFBC), WHEREIN WFBC AND SECURED PARTY HAVE AGREED, AS BETWEEN WFBC AND SECURED PARTY ONLY, THAT THE PRIORITY OF THE SECURED PARTYS SECURITY INTERESTS IN THE COLLATERAL DESCRIBED IN THIS FINANCING STATEMENT SHALL AT ALL TIMES BE SUBORDINATE TO WFBCS SECURITY INTERESTS IN SUCH COLLATERAL, NOTWITHSTANDING THE TIME, ORDER OR MANNER OF FILING OR PERFECTION.
In the event such language is not included on the face of such original filings, without limiting any other remedies of Senior Lender, Subordinated Creditor hereby authorizes Senior Lender to amend such filings consistent with this Agreement.
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If to the Senior Lender:
Wells Fargo Bank, National Association
MAC N9312-040
109 South 7th Street, 4th Floor
Minneapolis, MN 55402
Attention: Becky A. Koehler
Telecopier: (612) 341-2472
If to the Subordinated Creditor:
Cloud Cray, Jr. Trust
20045 266th Road
Atchison, KS 66002
Attention:
Telecopier: ( )
or at such other address as may hereafter be designated in writing by that party. All such notices or other communications shall be deemed to have been given on (i) the date received if delivered personally, (ii) the date of posting if delivered by mail, or (iii) the date of transmission if delivered by telecopy.
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[Signature Page Follows]
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IN WITNESS WHEREOF, the Subordinated Creditor has executed this Agreement as of the date and year first above-written.
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CLOUD L. CRAY, JR. TRUST |
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under an agreement dated October 25, 1983 |
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By: |
/s/ Cloud L. Cray, Jr., Ttee |
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Name: |
Cloud L. Cray, Jr. |
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Its: |
Trustee |
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Acknowledgment by Borrower
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MIDWEST GRAIN PIPELINE, INC. |
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a Kansas corporation |
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By: |
/s/ Timothy W. Newkirk |
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Name: |
Timothy W. Newkirk |
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Its: |
President & CEO |
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MGP INGREDIENTS, INC. |
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a Kansas corporation |
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By: |
/s/ Timothy W. Newkirk |
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Name: |
Timothy W. Newkirk |
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Its: |
President & CEO |
EXHIBIT A
attach copy of Subordinated Note with following legend
THIS PROMISSORY NOTE IS SUBJECT TO THE TERMS OF A SUBORDINATION AGREEMENT BY CLOUD L. CRAY, JR. TRUST, UNDER AN AGREEMENT DATED OCTOBER 25, 1983 IN FAVOR OF WELLS FARGO BANK, NATIONAL ASSOCIATION, ACTING THROUGH ITS WELLS FARGO BUSINESS CREDIT OPERATING DIVISION, DATED JULY, , 2009.