CONSENT AND RELEASE

EX-4.1.9 2 a10-3401_1ex4d1d9.htm EX-4.1.9

Exhibit 4.1.9

 

CONSENT AND RELEASE

 

THIS CONSENT AND RELEASE, dated as of December 21, 2009 (this “Release”), between MGP INGREDIENTS, INC., a Kansas corporation (the “Borrower”), and WELLS FARGO BANK, NATIONAL ASSOCIATION (the “Lender”) acting through its Wells Fargo Business Credit operating division.

 

WITNESSETH:

 

WHEREAS, pursuant to that certain Credit and Security Agreement, dated as of July 21, 2009 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”; capitalized terms defined therein and used herein having the meanings given to them in the Credit Agreement), between the Borrower and the Lender, the Lender has agreed to make extensions of credit to the Borrower upon the terms and subject to the conditions set forth therein;

 

WHEREAS, pursuant to the Credit Agreement, the Borrower granted to the Lender a lien on and security interest in the Collateral of the Borrower, including without limitation all of the personal property assets of the Borrower set forth on Exhibit A attached hereto (the “Flour Equipment”) located in the Flour Mill at 1100 Main Street in Atchison, Kansas; and

 

WHEREAS, pursuant to that certain Asset Purchase Agreement dated as of approximately even date herewith, by and between Borrower and ConAgra Foods Food Ingredients Company, Inc., a Delaware corporation (“ConAgra”), ConAgra has agreed to purchase the Flour Equipment (the “Flour Equipment Sale”).

 

NOW, THEREFORE, in consideration of the premises and the agreements hereinafter contained, it is hereby agreed as follows:

 

1.             Consent to Sale and Release of Flour Equipment.  The Lender hereby consents to the Flour Equipment Sale subject to the following conditions, all of which shall survive the initial closing of the Flour Equipment Sale:

 

(a)           The aggregate proceeds from the Flour Equipment Sale shall not be in an amount less than approximately $500,000 (the “Sale Proceeds”).

 

(b)           All Sale Proceeds (other than amounts used to pay fees and costs due by Borrower associated with the Flour Equipment Sale) shall be wired concurrent with the closing of the Flour Equipment Sale to the following account of Borrower established at Lender:

 

Bank Name: Wells Fargo Bank

Wire Routing Transit Number: 121000248

City, State: San Francisco, CA

Account Number: 4121928048

Title of Account: MGP Ingredients, Inc.

 



 

2.             Release of Liens.  Upon satisfaction of the conditions set forth in Section 1 hereto, upon the closing of the Flour Equipment Sale, the Lender hereby releases and terminates any and all security interests and liens held by or for the benefit of the Lender (to the extent Lender had a security interest or lien) in the assets comprising the Flour Equipment.

 

3.             Representations of the Borrower.  The Borrower hereby represents and warrants to the Lender that (a) upon execution of this Release and at the time of the Flour Equipment Sale, it is in compliance with the Credit Agreement and the other Loan Documents, and (b) before and after giving effect to the disposition of the Flour Equipment, no Default or Event of Default has occurred and is continuing as of the date hereof and as of the closing date of the Flour Equipment Sale.

 

4.             Governing Law, Etc.  This Release shall be governed by, and construed in accordance with, the law of the State of Minnesota.  This Release may be executed in any number of counterparts, each of which shall be an original, and all of which, when taken together, shall constitute one agreement.  Delivery of an executed signature page of this Release by facsimile or electronic transmission shall be effective as delivery of a manually executed counterpart hereof.

 

5.             Third Party Beneficiaries.  This Release is not intended to confer any legal or equitable rights or remedies upon any party other than the parties hereto.

 

[Signatures follow on next page]

 

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IN WITNESS WHEREOF, the parties hereto have executed this Release as of the date first written above.

 

WELLS FARGO BANK,

 

MGP INGREDIENTS, INC.

NATIONAL ASSOCIATION

 

a Kansas corporation

 

 

 

 

 

 

By:

/s/ Becky A. Koehler

 

By:

/s/ Timothy W. Newkirk

Name:

Becky A. Koehler

 

Name:

Timothy W. Newkirk

Title:

Vice President

 

Title:

President

 

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EXHIBIT A

 

Flour Equipment to be Released

 

 

 

MGP Mill Equipment Removal List

 

 

Location

 

Equipment

 

Manufacture

Elevator

 

Grain Probe

 

Apollo

Elevator

 

Various Motors

 

 

Elevator

 

Grain Cleaner

 

Garnet

Elevator

 

Misc Electrical Starters & Section

 

 

Mill

 

Hammermill 150 hp

 

Bliss

Mill

 

Hammertec elbows

 

 

Mill

 

MTMA Cleaner\asp (3)

 

Buhler

Mill

 

Destoner MTSB100

 

Buhler

Mill

 

Destoner MTSC 50

 

Buhler

Mill

 

Destoner MTSC 120/120

 

Buhler

Mill

 

Aspirator

 

Buhler

Mill

 

Hammermill 50 hp

 

Bliss

Mill

 

flowbalancer (1)

 

Buhler

Mill

 

Rollstand

 

Sangati

Mill

 

Misc rolls chills

 

 

Mill

 

Misc rolls mill parts

 

various

Mill

 

Misc stream splitter

 

Kice

Mill

 

Entoleters

 

 

Mill

 

Misc blowers

 

various

Mill

 

Misc Pulleys

 

 

Mill

 

Misc Magnets

 

various

Mill

 

Misc pneu slide gates

 

various

Mill

 

Misc Fans

 

various

Mill

 

misc Airlock\hoppers

 

various

Mill

 

Misc Spouting\valves\elbows

 

 

Mill

 

Flour bin dischargers

 

 

Mill

 

Pneumatic ab-mill (30) splitters

 

Kice

Mill

 

Fans pneu b-mill (3)

 

Kice

mill

 

Misc auto Valves

 

Salina

Mill

 

Sifter 6 section (2)

 

GW

Mill

 

Sifter 4 section (1)

 

GW

Mill

 

Rebolt 211

 

GW

Mill

 

Intensivesifter (6)

 

Buhler

Mill

 

Rebolt 431

 

GW

Mill

 

Duster (6)

 

Buhler

Mill

 

Rebolt 322/14

 

GW

Mill

 

Rebolt 321/8

 

GW

Mill

 

Extraction sifter

 

gw

Mill

 

Misc Lift shoes

 

Kice

 

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MGP Mill Equipment Removal List

 

 

Location

 

Equipment

 

Manufacture

Mill

 

Vac system

 

Hoffman

Mill

 

RJ filter conversion

 

Kice

Mill

 

blendvane feeders

 

Salina

Mill

 

Multi aspirator

 

Kice

Mill

 

Misc PLC Equipment

 

AB

Mill

 

Misc Spare parts

 

various

Mill

 

Misc Motors

 

various

Mill

 

Air dryer & tank

 

 

Mill

 

Fork Lift & charger

 

 

Mill

 

Boiler electric Dewey shepard

 

 

Mill

 

Electrical Starters & Section

 

Allen Bradley

Mill

 

Vacuum

 

Kice

Mill

 

Freight elevator

 

 

 

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