Exhibit
4.2
FIFTH
AMENDMENT TO CREDIT AGREEMENT
This
Fifth Amendment to Credit Agreement (the "Amendment") is made
as of March 13, 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, (iii) a Third
Amendment to Credit Agreement dated as of December 19, 2008, and (iv) a Fourth
Amendment to Credit Agreement dated as of February 27, 2009, and a letter
agreement dated as of March 11, 2009 (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 requested that the outside date of the Standstill Period be
extended to March 27, 2009 and that, likewise, the date of the next reduction in
the Overadvance Amount be extended to March 27, 2009.
(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:
1. 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.
2. Standstill Period Expiration
Date. The reference to "March 13, 2009" in Section 3.19 of the
Credit Agreement is amended to read "March 27, 2009".
3. Delay of the Overadvance
Step-down. Each reference to "March 13, 2009" in the
definition of Overadvance Amount in Section 1.1 of the Credit Agreement is
amended to read "March 27, 2009".
4. 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.
5. 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 or recoupment 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.
6. 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.
7. 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.
8. 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:
(a) Amendment. This
Amendment;
(b) Other. Such other
documents, consents, agreements or other items as the Agent may reasonably
request.
9. 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.
10. Expenses. The
Borrowers shall pay the reasonable out-of-pocket legal fees and expenses
incurred by the Agent, the Banks and their respective 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.
11. Governing
Law. This Amendment shall be governed by the same law that
governs the Credit Agreement.
12. 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.
By: /s/ Robert Zonneveld
Name: Robert
Zonneveld
Title:
V.P & CFO
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MIDWEST
GRAIN PIPELINE, INC.
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By: /s/ Robert Zonneveld
Name:
Robert Zonneveld
Title:
V.P & CFO
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as
Agent, Issuing Bank, Swingline Lender and a
Bank
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By:/s/ Crag D.Buckley
Name:
Craig D. Buckley
Title:
Vice President
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BMO
CAPITAL MARKETS FINANCING, INC.,
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as a Bank
By: /s/ Barry W. Stratton
Name:
Barry Stratton
Title:
Managing Director
as a Bank
By: /s/ Michael
Leong
Name:
Michael Leong
Title:
Vice President