Exhibit
4.1
September
16, 2008
MGP
Ingredients, Inc.
100
Commercial Street
Atchison,
KS 66002
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Re:
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Lease
Agreement dated as of August 1, 2001, as amended by the First Amendment to
Lease Agreement and Modification Agreement dated as of July 1, 2003 (as
amended, the “Lease Agreement”), among GE Capital Public Finance, Inc.,
now known as GE Government Finance, Inc. (“GEGF”), The Unified Government
of Wyandotte County/Kansas City, Kansas (“Issuer”) and Midwest Grain
Products, Inc., now known as MGP Ingredients, Inc. (“MGP”); Master
Security Agreement dated as of September 24, 2004 (the “GEGF Master
Security Agreement”) between MGP and GEGF; and the Master Security
Agreement dated as of September 29, 2005 (the “GECC Security Agreement”)
between MGP and GECC
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Reference is hereby made to the Lease
Agreement, the GEGF Security Agreement and the GECC Security
Agreement. General Electric Capital Corporation (“GECC”) is the
assignee of GEGF and is the owner of the Lease Agreement. GECC has
appointed GEGF as its agent and attorney-in-fact with respect to all matters
related to the Lease Agreement. All capitalized terms used but not
defined herein shall have the meanings given such terms in the Lease Agreement,
the GEGF Security Agreement or the GECC Security Agreement, as the case may
be.
Section
7.16 of the Lease Agreement requires MGP to not permit, at the end of each
fiscal quarter, its ratio of Net Income Available for Fixed Charges to Fixed
Charges for the period of four consecutive four fiscal quarters then ending to
be less than 1.50 to 1.00. As of June 30, 2008, MGP failed to meet
such covenant, constituting a Default under the Lease Agreement (the “Fixed
Charge Coverage Ratio Default”). The GEGF Security Agreement and the
GECC Security Agreement both provide that a default occurs if MGP defaults under
any other agreement with GEGF and GECC, as the case may be (collectively, the
“Cross Defaults”; the Fixed Charge Coverage Ratio Default and the Cross Defaults
are collectively referred to herein as the “Defaults”).
Subject to
the terms and conditions of this letter agreement, GECC and GEGF agree to waive
the Defaults. GECC’s and GEGF’s agreement to waive the Defaults shall
be subject to receipt by GECC and GEGF of each of the following items in form
and substance satisfactory to GECC and GEGF on or before September 30,
2008:
(i) This
letter agreement executed on behalf of MGP in the space provided below;
and
(ii) Payment
to GEGF of a fee in the amount of $2,500.
By signing
below, MGP represents, warrants and agrees as follows:
1. The
description of the Defaults set forth above is true and accurate, and MGP
acknowledges that the Defaults have occurred.
2. All
of the representations and warranties of MGP contained in the Lease Agreement,
the GEGF Security Agreement and the GECC Security Agreement are true and correct
as of the date hereof and no Default or Event of Default has occurred and is
continuing under the Lease Agreement, the GEGF Security Agreement or the GECC
Security Agreement other than the Defaults.
3. All
terms and conditions of the Lease Agreement, the GEGF Security Agreement and the
GECC Security Agreement shall remain in full force and effect and are hereby
ratified and confirmed by MGP.
4. No
amendment, modification, termination or waiver of any provision of the Lease
Agreement, the GEGF Security Agreement or the GECC Security Agreement or this
letter agreement shall be effective unless the same shall be in writing and
signed by GECC or GEGF, as the case may be, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given. No waiver given in any instance shall entitle MGP to
any other or further notice or demand in any similar or other
circumstances.
MGP HEREBY RELEASES AND FOREVER
DISCHARGES GECC AND GEGF AND THEIR FORMER AND PRESENT DIRECTORS, OFFICERS,
EMPLOYEES, AGENTS AND REPRESENTATIVES OF AND FROM EVERY AND ALL CLAIMS, DEMANDS,
CAUSES OF ACTION IN LAW OR IN EQUITY AND LIABILITIES, OF ANY KIND OR NATURE,
WHETHER KNOWN OR UNKNOWN, LIQUIDATED OR UNLIQUIDATED, ABSOLUTE OR CONTINGENT,
WHICH MGP EVER HAD, PRESENTLY HAS OR CLAIMS TO HAVE AGAINST GECC OR GEGF AND ANY
SUCH DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND REPRESENTATIVES FROM THE
BEGINNING OF TIME TO THE DATE OF THIS LETTER AGREEMENT, THAT ARISE OUT OF OR IN
ANY WAY RELATE TO THE LEASE AGREEMENT, THE GEGF SECURITY AGREEMENT OR THE GECC
SECURITY AGREEMENT OR ANY RELATED DOCUMENT.
This letter agreement may be executed
in any number of counterparts, each of which when so executed and delivered
shall be deemed to be an original and all of which counterparts, taken together,
shall constitute but one and the same instrument.
MGP, GECC AND GEGF HEREBY WAIVE THEIR
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF, DIRECTLY OR INDIRECTLY, THIS LETTER AGREEMENT, ANY OF THE
RELATED DOCUMENTS, ANY DEALINGS AMONG MGP, GECC AND GEGF RELATING TO THE SUBJECT
MATTER OF THE TRANSACTIONS CONTEMPLATED BY THIS LETTER AGREEMENT OR ANY RELATED
TRANSACTIONS. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL
ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT (INCLUDING,
WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL
OTHER COMMON LAW AND STATUTORY CLAIMS). THIS WAIVER IS IRREVOCABLE,
MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THIS WAIVER
SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS
TO THIS LETTER AGREEMENT, ANY RELATED DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR
AGREEMENTS RELATING TO THE TRANSACTIONS CONTEMPLATED BY THIS LETTER AGREEMENT OR
ANY RELATED TRANSACTIONS. IN THE EVENT OF LITIGATION, THIS AGREEMENT
MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
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This letter agreement constitutes the
entire agreement between the parties relating to the subject matter hereof and
supersedes any prior agreements, whether written or oral.
Very truly yours,
GENERAL
ELECTRIC CAPITAL CORPORATION
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By:
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GE
GOVERNMENT FINANCE, INC., formerly known as GE CAPITAL PUBLIC FINANCE,
INC., as subservicer for and on behalf of General Electric Capital
Corporation
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By: /s/ Bruce Gruys
Title: Vice
President
GENERAL
ELECTRIC CAPITAL CORPORATION
By: /s/
Bruce Gruys
Title: Senior
Risk Analyst
GE
GOVERNMENT FINANCE, INC., formerly known as GE CAPITAL PUBLIC FINANCE,
INC.
By: /s/
Bruce Gruys
Title: Vice
President
Accepted
and Agreed:
MGP
INGREDIENTS, INC.
By: ______________________________
Title: _____________________________
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