EXHIBIT 10.2
April 14, 2005
AMCON Distributing Company
0000 Xxxxxxxxx Xxxx
Xxxxx, Xxxxxxxx 00000
And
The Beverage Group, Inc.
0 Xxxxx Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
And
Xxxxxxxxxx Natural Foods, Inc.
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxx 00000
And
Hawaiian Natural Water Company, Inc.
00-000 Xxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxx 00000
And
Health Food Associates, Inc.
0000 Xxxx 00xx Xxxxxx
Xxxxx, Xxxxxxxx 00000
And
Trinity Springs, Inc.
0000 Xxxx Xxxxx Xxxxxx
Xxxxx 000
Xxxxx, Xxxxx 00000
RE: REVISED FIRST AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY
AGREEMENT
Gentlemen:
AMCON Distributing Company, a Delaware corporation, ("AMCON"), The
Beverage Group, Inc., a Delaware corporation, ("Beverage Group"),
Hawaiian Natural Water Company, Inc., a Delaware corporation, ("Hawaiian
Natural"), Xxxxxxxxxx Natural Foods, Inc., a Florida corporation,
("Xxxxxxxxxx Natural"), and Health Food Associates, Inc., an Oklahoma
corporation, ("Health Food") (AMCON, Beverage Group, Hawaiian Natural,
Xxxxxxxxxx Natural, and Health Food are each referred to as a "Borrower"
and are collectively referred to as "Borrowers") and LaSalle Bank
National Association, a national banking association (in its individual
capacity, "LaSalle"), as agent (in such capacity as agent, "Agent") for
itself, Gold Bank, a Kansas state bank, and all other lenders from time
to time a party hereto ("Lenders"), have entered into that certain
Amended and Restated Loan and Security Agreement dated September 30,
2004 (the "Security Agreement"). From time to time thereafter,
Borrower, Agent and Lenders may have executed various amendments (each
an "Amendment" and collectively the "Amendments") to the Security
Agreement (the Security Agreement and the Amendments hereinafter are
referred to, collectively, as the "Agreement"). Borrower, Agent and
Lenders now desire to further amend the Agreement as provided herein,
subject to the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing recitals, the mutual
covenants and agreements set forth herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. The Agreement hereby is amended as follows:
(a) The definitions of "Maximum Loan Limit", and "Subsidiary Inventory
Sublimit" as set forth in Section 1 of the Agreement are hereby amended
and restated in their entirety, as follows:
"Maximum Loan Limit" shall mean Sixty Million and No/100 Dollars
($60,000,000.00).
"Subsidiary Inventory Sublimit" shall mean $5,500,000, as such amount be
reduced from time to time pursuant to subsection 2(d)(vi) hereof.
(b) Subsection 2(a) of the Agreement is hereby amended and restated in
its entirety, as follows:
(a) REVOLVING LOANS. Subject to the terms and conditions of this
Agreement and the Other Agreements, during the Original Term and any
Renewal Term, each Lender, severally and not jointly, agrees absent the
occurrence of an Event of Default, to make its Pro Rata Share of
revolving loans and advances (the "Revolving Loans") requested by
Borrower Representative on behalf of each Borrower up to such Lender's
Revolving Loan Commitment so long as after giving effect to such
Revolving Loans, the sum of the aggregate unpaid principal balance of
the Revolving Loans and the Letter of Credit Obligations does not exceed
an amount up to the sum of the following sublimits (the "Revolving Loan
Limit"):
(i) Up to eighty-five percent (85%) of the face amount (less maximum
discounts, credits and allowances which may be taken by or granted to
Account Debtors in connection therewith in the ordinary course of
AMCON's business) of AMCON's Eligible Accounts; plus
(ii) Up to eighty percent (80%) of the face amount (less maximum
discounts, credits and allowances which may be taken by or granted to
Account Debtors in connection therewith in the ordinary course of such
Borrower's business) of such Borrower's Eligible Accounts (other than
AMCON's Eligible Accounts) or the Subsidiary Accounts Sublimit;
whichever is less, plus
(iii) Up to eighty-five percent (85%) of the lower of cost or market
value of Eligible Cigarette Inventory or Twenty Million and No/100
Dollars ($20,000,000.00), whichever is less; plus
(iv) Up to seventy percent (70%) of the lower of cost or market value
of AMCON's Eligible Inventory (consisting solely of AMCON's Eligible
Inventory other than Eligible Cigarette Inventory set forth in clause
(iii) above) or Twelve Million and No/100 Dollars ($12,000,000.00),
whichever is less; plus
(v) Up to sixty percent (60%) of the lower of cost or market value of
such Borrower's Eligible Inventory (other than AMCON's Eligible
Inventory or Eligible Cigarette Inventory) or the Subsidiary Inventory
Sublimit, whichever is less; plus
(vi) Up to (i) Two Million and No/100 Dollars ($2,000,000.00) from
April 14, 2005 through June 30, 2005; and (ii) One Million and No/100
Dollars ($1,000,000.00) from July 1, 2005 through September 29, 2005; as
a Special Accommodation to be made available each Monday of every week
and to be reduced to Zero and No/100 Dollars ($0.00) by each Thursday of
the same week, said Special Accommodation Loan shall be reduced to and
remain at Zero and No/100 Dollars ($0.00) on September 30, 2005; minus
(vii) such reserves as Agent elects, in its sole discretion to
establish from time to time, including without limitation, a reserve
with respect to Rate Hedging Obligations; provided, that the Revolving
Loan Limit shall in no event exceed Fifty Five Million and No/100
Dollars ($55,000,000.00) less the then-outstanding principal balance of
Term Loan A, thereafter (the "Maximum Revolving Loan Limit") except as
such amount may be increased or, following the occurrence of an Event of
Default, decreased by Agent from time to time, in Agent's sole
discretion. The aggregate unpaid principal balance of the Revolving
Loans shall not at any time exceed the lesser of the (i) Revolving Loan
Limit minus the Letter of Credit Obligations and (ii) the Maximum
Revolving Loan Limit minus the Letter of Credit Obligations. If at any
time the outstanding Revolving Loans exceeds either the Revolving Loan
Limit or the Maximum Revolving Loan Limit, in each case minus the Letter
of Credit Obligations, or any portion of the Revolving Loans and Letter
of Credit Obligations exceeds any applicable sublimit within the
Revolving Loan Limit (the "Overadvance"), Borrowers shall immediately,
and without the necessity of demand by Agent, pay to Agent such amount
as may be necessary to eliminate such Overadvance and Agent shall apply
such payment to the Revolving Loans in such order as Agent shall
determine in its sole discretion; provided that Agent may, in its sole
discretion, permit such Overadvance (the "Interim Advance") to remain
outstanding and continue to advance Revolving Loans to Borrowers on
behalf of Lenders without the consent of any Lender for a period of up
to thirty (30) calendar days, so long as (i) the amount of the Interim
Advances does not exceed at anytime Three Million and No/100 Dollars
($3,000,000.00), (ii) the aggregate outstanding principal balance of the
Revolving Loans does not exceed the Maximum Revolving Loan Limit, and
(iii) Agent has not been notified by Requisite Lenders to cease making
such Revolving Loans. If the Interim Advance is not repaid in full
within thirty (30) days of the initial occurrence of the Interim
Advance, no future advances may be made to Borrowers without the consent
of all Lenders until the Interim Advance is repaid in full.
Neither Agent nor any Lender shall be responsible for any failure by any
other Lender to perform its obligations to make Revolving Loans
hereunder, and the failure of any Lender to make its Pro Rata Share of
any Revolving Loan hereunder shall not relieve any other Lender of its
obligation, if any, to make its Pro Rata Share of any Revolving Loans
hereunder.
If Borrower Representative, on behalf of any Borrower, makes a request
for a Revolving Loan as provided herein Agent, at its option and in its
sole discretion, shall do either of the following:
(i) Manually Numbered
advance the amount of the proposed Revolving Loan to such Borrower
disproportionately (a "Disproportionate Advance") out of Agent's own
funds on behalf of Lenders, which advance shall be on the same day as
Borrower Representative's request therefor with respect to Prime Rate
Loans if Borrower Representative notifies Agent of such request by 1:00
P.M., Chicago time on such day, and request settlement in accordance
with Section 19 hereof such that upon such settlement each Lender's
share of the outstanding Revolving Loans (including, without limitation,
the amount of any Disproportionate Advance) equals its Pro Rata Share;
or
(ii) Notify each Lender by telecopy, electronic mail or other similar
form of teletransmission of the proposed advance on the same day Agent
is notified or deemed notified by Borrower Representative of such
Borrower's request for an advance pursuant to this Section 2(a). Each
Lender shall remit, to the demand deposit account designated by a
Borrower (i) with respect to Prime Rate Loans, at or prior to 3:00 P.M.,
Chicago time, on the date of notification, if such notification is made
before 1:00 P.M., Chicago time, or 10:00 A.M., Chicago time, on the
Business Day immediately succeeding the date of such notification, if
such notification is made after 1:00 P.M., Chicago time, and (ii) with
respect to LIBOR Rate Loans, at or prior to 10:30 A.M., Chicago time, on
the date such LIBOR Rate Loans are to be advanced, immediately available
funds in an amount equal to such Lender's Pro Rata Share of such
proposed advance.
If and to the extent that a Lender does not settle with Agent as
required under this Agreement (a "Defaulting Lender") Borrowers and
Defaulting Lender severally agree to repay to Agent forthwith on demand
such amount required to be paid by such Defaulting Lender to Agent,
together with interest thereon, for each day from the date such amount
is made available to a Borrower until the date such amount is repaid to
Agent (x) in the case of a Defaulting Lender at the rate published by
the Federal Reserve Bank of New York on the next succeeding Business Day
as the "Federal Funds Rate" or if no such rate is published for any
Business Day, at the average rate quoted for such day for such
transactions from three (3) federal funds brokers of recognized standing
selected by Agent, and (y) in the case of Borrowers, at the interest
rate applicable at such time for such Loans; provided, that Borrowers'
obligation to repay such advance to Agent shall not relieve such
Defaulting Lender of its liability to Agent for failure to settle as
provided in this Agreement.
Each Borrower hereby authorizes Agent, in its sole discretion, to charge
any of such Borrower's accounts or advance Revolving Loans to make any
payments of principal, interest, fees, costs or expenses required to be
made under this Agreement or the Other Agreements.
A request for a Revolving Loan shall be made or shall be deemed to be
made, each in the following manner: the Borrower Representative, on
behalf of the Borrower requesting such Revolving Loan, shall give Agent
same day notice, no later than 1:00 P.M. (Chicago time) for such day, of
its request for a Revolving Loan as a Prime Rate Loan, and at least
three (3) Business Days prior notice of its request for a Revolving Loan
as a LIBOR Rate Loan, in which notice the Borrower Representative shall
specify the amount of the proposed borrowing and the proposed borrowing
date; provided, however, that no such request may be made at a time when
there exists an Event of Default or an event which, with the passage of
time or giving of notice, will become an Event of Default. In the event
that a Borrower maintains a controlled disbursement account at LaSalle,
each check presented for payment against such controlled disbursement
account and any other charge or request for payment against such
controlled disbursement account shall constitute a request for a
Revolving Loan as a Prime Rate Loan. As an accommodation to Borrowers,
Agent may permit telephone requests for Revolving Loans and electronic
transmittal of instructions, authorizations, agreements or reports to
Agent by Borrower Representative, on behalf of Borrowers. Unless
Borrower Representative specifically directs Agent in writing not to
accept or act upon telephonic or electronic communications from Borrower
Representative, Agent shall have no liability to Borrowers for any loss
or damage suffered by Borrower Representative or any Borrower as a
result of Agent's honoring of any requests, execution of any
instructions, authorizations or agreements or reliance on any reports
communicated to it telephonically or electronically and purporting to
have been sent to Agent by Borrower Representative and Agent shall have
no duty to verify the origin of any such communication or the authority
of the Person sending it.
Each Borrower hereby irrevocably authorizes Agent to disburse the
proceeds of each Revolving Loan requested by Borrower Representative, or
deemed to be requested by Borrower Representative, as follows: the
proceeds of each Revolving Loan requested under Section 2(a) shall be
disbursed by Agent in lawful money of the United States of America in
immediately available funds, in the case of the initial borrowing, in
accordance with the terms of the written disbursement letter from
Borrower Representative, and in the case of each subsequent borrowing,
by wire transfer or Automated Clearing House (ACH) transfer to such bank
account as may be agreed upon by Borrower Representative and Agent from
time to time, or elsewhere if pursuant to a written direction from
Borrower Representative.
(c) Subsection 4(a)(i) of the Agreement is hereby amended and restated
in its entirety, as follows:
(i) Each Loan that is a Prime Rate Loan, other than the Special
Accommodation in subsection 2(a)(vi) and Term Loan B, shall bear
interest at the Prime Rate in effect from time to time, payable on the
last Business Day of each month in arrears. The Special Accommodation
in subsection 2(a)(vi) and Term Loan B shall bear interest at the rate
of two percent (2%) per annum in excess of the Prime Rate in effect from
time to time, payable on the last Business Day of each month in arrears.
Said rates of interest shall increase or decrease by an amount equal to
each increase or decrease in the Prime Rate effective on the effective
date of each such change in the Prime Rate.
(d) Subsection 4(c)(i) of the Agreement is hereby amended and restated
in its entirety, as follows:
(i) Amendment Fee: Borrower shall pay to Agent, for the benefit of
Lenders, an amendment fee of Fifty Thousand and No/100 Dollars
($50,000.00), which fee shall be fully earned by Lenders on the date of
this amendment and payable on January 31, 2005.
(e) Subsection 4(c) of the Agreement is hereby amended in its entirety
to add the following provisions:
(vi) Transaction Fee: Borrower shall pay to Agent for its benefit a
transaction fee of Two Thousand and No/100 Dollars ($2,000.00) with
respect to internal costs and expenses (in addition to any reimbursable
out-of-pocket costs and expenses of Agent) related to this First
Amendment, which fee shall be fully earned by Agent on the date of this
First Amendment and payable on April 30, 2005.
(vii) Waiver Fee: Borrower shall pay to Agent, for the benefit of
Lenders, an amendment fee of Ten Thousand and No/100 Dollars
($10,000.00), which fee shall be fully earned by Lenders on the date of
this the Revised First Amendment to the Agreement and payable on April
30, 2005.
(f) Subsection 11(f) of the Agreement is hereby amended and restated in
its entirety, as follows:
(f) ORGANIZATION, AUTHORITY AND NO CONFLICT.
AMCON is a corporation, duly organized, validly existing and in good
standing in the State of Delaware, its state organizational
identification number is 2093842 and such Borrower is duly qualified and
in good standing in all states where the nature and extent of the
business transacted by it or the ownership of its assets makes such
qualification necessary. Xxxxxxxxxx Natural is a corporation, duly
organized, validly existing and in good standing in the State of
Florida, its state organizational identification number is 538536 and
such Borrower is duly qualified and in good standing in all states where
the nature and extent of the business transacted by it or the ownership
of its assets makes such qualification necessary. Hawaiian Natural is a
corporation, duly organized, validly existing and in good standing in
the State of Delaware, its state organizational identification number is
3293592 and such Borrower is duly qualified and in good standing in all
states where the nature and extent of the business transacted by it or
the ownership of its assets makes such qualification necessary. Beverage
Group is a corporation, duly organized, validly existing and in good
standing in the State of Delaware, its state organizational
identification number is 3607471 and such Borrower is duly qualified and
in good standing in all states where the nature and extent of the
business transacted by it or the ownership of its assets makes such
qualification necessary. Health Food is a corporation, duly organized,
validly existing and in good standing in the State of Oklahoma, its
state organizational identification number is 1900173205 and such
Borrower is duly qualified and in good standing in all states where the
nature and extent of the business transacted by it or the ownership of
its assets makes such qualification necessary. Trinity Springs, Inc. is
a corporation, duly organized, validly existing and in good standing in
the State of Delaware, its state organizational identification number is
3791436 and such Borrower is duly qualified and in good standing in all
states where the nature and extent of the business transacted by it or
the ownership of its assets makes such qualification necessary. Each
Borrower has the right and power and is duly authorized and empowered to
enter into, execute and deliver this Agreement and the Other Agreements
and perform its obligations hereunder and thereunder. Each Borrower's
execution, delivery and performance of this Agreement and the Other
Agreements does not conflict with the provisions of the organizational
documents of such Borrower, any statute, regulation, ordinance or rule
of law, or any agreement, contract or other document which may now or
hereafter be binding on such Borrower, and each Borrower's execution,
delivery and performance of this Agreement and the Other Agreements
shall not result in the imposition of any lien or other encumbrance upon
any of such Borrower's property under any existing indenture, mortgage,
deed of trust, loan or credit agreement or other agreement or instrument
by which such Borrower or any of its property may be bound or affected.
(g) Subsection 13(d) of the Agreement is hereby amended and restated in
its entirety, as follows:
(d) MERGERS, SALES, ACQUISITIONS, SUBSIDIARIES AND OTHER TRANSACTIONS
OUTSIDE THE ORDINARY COURSE OF BUSINESS.
No Borrower shall (i) enter into any merger or consolidation; (ii)
change its state of organization or enter into any transaction which has
the effect of changing its state of organization (iii) sell, lease or
otherwise dispose of any of its assets other than in the ordinary course
of business, provided that AMCON may sell and dispose of assets with a
value of less than $250,000.00 in any transaction, or series of related
transactions, provided that the proceeds thereof, net of reasonable out
of pocket disposition expenses, are applied to the Liabilities; (iv)
purchase the stock, other equity interests or all or a material portion
of the assets of any Person or division of such Person; or (v) enter
into any other transaction outside the ordinary course of such
Borrower's business, including, without limitation, any purchase,
redemption or retirement of any shares of any class of its stock or any
other equity interest, and any issuance of any shares of, or warrants or
other rights to receive or purchase any shares of, any class of its
stock or any other equity interest other than such issuances pursuant to
the terms of such Borrower's stock option plan and the issuance by AMCON
of Series B Preferred Stock so long as the entire proceeds thereof are
used to repay the existing subordinated indebtedness of AMCON, provided
that AMCON may redeem odd lot stock in an aggregate amount not to exceed
$50,000.00 in any calendar year and other stock up to $100,000.00 in the
aggregate during any calendar year. No Borrower shall form any
Subsidiaries or enter into any joint ventures or partnerships with any
other Person.
(h) Subsections 14(a) and 14(b) of the Agreement are hereby amended and
restated in their entirety, as follows:
(a) TANGIBLE NET WORTH.
Borrowers' Tangible Net Worth shall not at any time be less than the
Minimum Tangible Net Worth; "Minimum Tangible Net Worth" being defined
for purposes of this subsection as (i) One Million Five Hundred Thousand
and No/100 Dollars ($1,500,000.00) at all times from December 31, 2004
through September 29, 2005; (ii) Two Million Five Hundred Thousand and
No/100 Dollars ($2,500,000.00) at September 30, 2005; and (ii)
thereafter, in an amount to be determined by Agent in its sole and
reasonable discretion based upon Borrowers' audited year end financial
statements; and "Tangible Net Worth" being defined for purposes of this
subsection as Borrowers' shareholders' equity (including retained
earnings) less the book value of all intangible assets (excluding the
Trinity Springs, Inc. water rights) as determined solely by Agent on a
consistent basis plus the amount of any LIFO reserve plus the amount of
any debt subordinated to Agent and Lenders, all as determined under
generally accepted accounting principles applied on a basis consistent
with the financial statements dated December 31, 2004 except as set
forth herein;
(b) FIXED CHARGE COVERAGE.
For the three (3) month period ending December 31, 2004, Borrowers shall
not permit the ratio of their EBITDA to Fixed Charges to be less than
0.7 to 1.0. For the six (6) month period ending March 31, 2005,
Borrowers shall not permit the ratio of their EBITDA to Fixed Charges to
be less than 0.7 to 1.0. For the nine (9) month period ending June 30,
2005, Borrowers shall not permit the ratio of their EBITDA to Fixed
Charges to be less than 0.7 to 1.0. For the twelve (12) month period
ending on September 30, 2005, Borrowers shall not permit the ratio of
their EBITDA to Fixed Charges to be less than .7 to 1.0, provided that
the failure to comply with such covenant shall not constitute an Event
of Default so long as Borrowers have sufficient aggregate availability
under subsection 2(a) hereof to institute a reserve in an amount equal
to an amount which, when added to the EBITDA for the respective three
(3), six (6) or nine (9) month period or when added to the trailing
twelve (12) month EBITDA, would cause the ratio of EBITDA to Fixed
Charges for such three (3), six (6), nine (9) or trailing twelve (12)
month period to equal 0.7 to 1.0. Thereafter, Fixed Charge Coverage
shall be equal to an amount to be determined by Agent, in its sole and
reasonable discretion.
(i) Section 17 of the Agreement is hereby amended in its entirety to
add the following provision:
(k) Additional-Borrower: Simultaneously herewith, Trinity Springs,
Inc. shall become an additional Borrower under the Agreement and
wherever the term "Borrower' appears in the Agreement, it shall also
include Trinity Springs, Inc., ("Trinity") a Borrower. Trinity hereby
grants (i) Bank a first priority security interest in all of its assets
and permits Bank to file all necessary UCC-1 financing statements, and
(ii) AMCON Distributing Company a second priority security interest in
all of its assets.
(j) The "Revolving Loan Commitment" as set forth in the signature box
for LaSalle Bank National Association of the Agreement is hereby amended
and restated in its entirety, as follows:
Revolving Loan Commitment: $ 36,666,667.00
(k) The "Revolving Loan Commitment" as set forth in the signature box
for Gold Bank of the Agreement is hereby amended and restated in its
entirety, as follows:
Revolving Loan Commitment: $ 18,333,333.00
(l) Exhibit A of the Agreement is Amended and Restated as the First
Amended and Restated Exhibit A of the Agreement.
2. This Amendment shall not become effective until fully executed by
all parties hereto.
3. Except as expressly amended hereby and by any other supplemental
documents or instruments executed by either party hereto in order to
effectuate the transactions contemplated hereby, the Agreement thereto
hereby is ratified and confirmed by the parties hereto and remain in
full force and effect in accordance with the terms thereof.
LASALLE BANK NATIONAL ASSOCIATION, a national banking association, as
Agent and a Lender
By /s/ Xxxxxx X. Xxxxxx
Title Senior Vice President
Revolving Loan Commitment: $35,892,947.00
Term Loan A Commitment: $773,720.00
Term Loan B Commitment: $3,333,000.00
GOLD BANK, a Kansas state bank, as a Lender
By /s/ Xxxx Xxxxxxxx
Title Vice President
Revolving Loan Commitment: $17,947,053.00
Term Loan A Commitment: $386,280.00
Term Loan B Commitment $1,667,000.00
ACKNOWLEDGED AND AGREED TO
this 15th day of April, 2005:
AMCON DISTRIBUTING COMPANY
By /s/ Xxxxxxx X. Xxxxx
Title Vice President / CFO
THE BEVERAGE GROUP, INC.
By /s/ Xxxxxxx X. Xxxxx
Title Secretary
HAWAIIAN NATURAL WATER COMPANY, INC.
By /s/ Xxxxxxx X. Xxxxx
Title Secretary
XXXXXXXXXX NATURAL FOODS, INC.
By /s/ Xxxxxxx X. Xxxxx
Title Secretary
HEALTH FOOD ASSOCIATES, INC.
By /s/ Xxxxxxx X. Xxxxx
Title Secretary
TRINITY SPRINGS, INC.
By /s/ Xxxxxxx X. Xxxxx
Title Assistant Secretary
Consented and agreed to by the following
guarantor(s) of the obligations of AMCON
DISTRIBUTING COMPANY, THE BEVERAGE
GROUP, INC., HAWAIIAN NATURAL
WATER COMPANY, INC., XXXXXXXXXX
NATURAL FOODS, INC., and HEALTH FOOD
ASSOCIATES, INC. to LaSalle Bank
National Association, as Agent.
/s/ Xxxxxxx X. Xxxxxx
Date: April 15, 2005
AMCON Distributing Company
The Beverage Group, Inc.
Xxxxxxxxxx Natural Foods, Inc.
Hawaiian Natural Water Company, Inc.,
Health Food Associates, Inc.
Trinity Springs, Inc.
April 14, 2005
Page 2
BORROWER ADDITION AGREEMENT
This Borrower Addition Agreement (this "Agreement") is made as of April
__, 2005, between TRINITY SPRINGS, INC., a Delaware corporation
("Company"), GOLD BANK, a Kansas state bank, as a Lender (Gold Bank) 000
Xxxx 00xx Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000, LASALLE BANK NATIONAL
ASSOCIATION, a national banking association (in its individual capacity,
LaSalle), as agent (in such capacity as agent, Agent) for itself, Gold
Bank and all other lenders from time to time a party hereto (Lenders),
000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 4105, all other
Lenders.
WITNESSETH:
WHEREAS, AMCON Distributing Company, a Delaware corporation, (AMCON),
The Beverage Group, Inc., a Delaware corporation, (Beverage Group),
Hawaiian Natural Water Company, Inc., a Delaware corporation, (Hawaiian
Natural), Xxxxxxxxxx Natural Foods, Inc., a Florida corporation,
(Xxxxxxxxxx Natural), and Health Food Associates, Inc., an Oklahoma
corporation, (Health Food) (AMCON, Beverage Group, Hawaiian Natural,
Xxxxxxxxxx Natural, and Health Food are each referred to as a Borrower
and are collectively referred to as Borrowers) and Agent for itself,
Gold Bank, all other Lenders, have entered into that certain Amended and
Restated Loan and Security Agreement dated September 30, 2004 (the
"Security Agreement"). From time to time thereafter, Borrower, Agent
and Lenders may have executed various amendments (each an "Amendment"
and collectively the "Amendments") to the Security Agreement (the
Security Agreement and the Amendments hereinafter are referred to,
collectively, as the "Loan Agreement"); capitalized terms used herein
and not otherwise defined herein shall have the meanings ascribed to
such terms in the Loan Agreement;
WHEREAS, the Loan Agreement and the Other Agreements provide for the
making of loans and the extension of certain other financial
accommodations (the "Loans") by Agent and the Lenders to Borrowers; and
WHEREAS, Company has had the benefit of legal counsel of its own choice
and has been afforded an opportunity to review the Loan Agreement and
each Other Agreement with its legal counsel; and
WHEREAS, Company deems it to be in its best interest to become a
Borrower under the Loan Agreement and each Other Agreement; and
WHEREAS, to induce Agent and the Lenders to deem Company a Borrower
under the Loan Agreement, Company desires to execute this Agreement;
NOW, THEREFORE, Company agrees with Agent and the Lenders as follows:
1. JOINDER. Subject to the terms and conditions of this Agreement,
the Company is hereby joined in the Loan Agreement as a Borrower, and
the Company hereby agrees to be bound by the terms and conditions of the
Loan Agreement and each Other Agreement, as a Borrower, in each case as
if Company were a direct signatory thereto. In furtherance of the
preceding sentence, and without limiting any provision of the Loan
Agreement or any Other Agreement, Company agrees as follows:
(a) Company acknowledges and agrees that it is jointly and severally
liable for all of the now existing and hereafter arising Liabilities;
(b) To secure the payment, performance and observance of the
Liabilities, Company hereby assigns to Agent for the benefit of Agent
and Lenders and grants to Agent for the benefit of Agent and Lenders a
continuing security interest in the following property of Company,
whether now or hereafter owned, existing, acquired or arising and
wherever now or hereafter located:
(i) All Accounts (whether or not Eligible Accounts) and all Goods
whose sale, lease or other disposition by Company has given rise to
Accounts and have been returned to, or repossessed or stopped in transit
by, Company;
(ii) All Chattel Paper, Instruments, Documents and General
Intangibles (including, without limitation, all patents, patent
applications, trademarks, trademark applications, tradenames, trade
secrets, goodwill, copyrights, copyright applications, registrations,
licenses, franchises, customer lists, tax refund claims, claims against
carriers and shippers, guarantee claims, contracts rights, security
interests, security deposits and rights to indemnification);
(iii) All Inventory (whether or not Eligible Inventory);
(iv) All Goods (other than Inventory), including, without limitation,
Equipment, vehicles and fixtures;
(v) All Investment Property;
(vi) All Deposit Accounts, bank accounts, deposits and cash;
(vii) All Letter-of-Credit Rights;
(viii) Commercial Tort Claims listed on Exhibit C to the Loan
Agreement;
(ix) Any other property of Company now or hereafter in the
possession, custody or control of Bank or any agent or any parent,
affiliate or subsidiary of Bank or any participant with Bank in the
Loans, for any purpose (whether for safekeeping, deposit, collection,
custody, pledge, transmission or otherwise); and
(x) All additions and accessions to, substitutions for, and
replacements, products and Proceeds of the foregoing property,
including, without limitation, proceeds of all insurance policies
insuring the foregoing property, and all of Company's books and records
relating to any of the foregoing and to Company's business.
2. COMPANY'S REPRESENTATION AND WARRANTIES. To induce Bank to enter
into this Agreement, Company hereby represents and warrants to Bank that
the execution, delivery and performance of this Agreement are within its
power, do not require the consent or approval of any governmental agency
or authority, and do not and will not conflict with any provision of law
applicable to Company, the organizational documents of Company, or any
court or administrative order or decree applicable to Company or any of
its property.
3. CONDITIONS PRECEDENT. This Agreement shall not be effective until
Company has satisfied all of the following conditions precedent, each in
form and substance satisfactory to Bank in its sole discretion:
(a) This Agreement has been executed and delivered to Bank;
(b) A Reaffirmation and Amendment relating to this Borrower Addition
Agreement, in the form as attached hereto, has been executed by
Borrowers and Company and delivered to Bank;
(C) Bank has determined that it has a validly perfected first priority
security interest in all or substantially all of Company's assets;
(d) Company has executed and delivered to Bank a Secretary's
Certificate as to its Certificate of Incorporation, By-Laws, and
incumbency of officers of Company;
(e) Company has delivered to Bank good standing certificates for
Company in its state of organization and all other states in which
Company is required to be qualified, unless the failure to be so
qualified would likely cause a Material Adverse Effect;
(f) An opinion letter has been issued to Bank by the law firm for
Company pertaining to this Agreement;
(g) [A Blocked Account Agreement in favor of Agent for the Companys
account at ____________ Bank];
(h) A Reaffirmation relating to this Borrower, in the form as attached
hereto, from Xxxxxxx X. Xxxxxx confirming the effectiveness of its
Continuing Unconditional Guaranty dated September 30, 2004 after giving
effect to this Borrower Addition Agreement;
(i) [A Trademark Security Agreement that collaterally assigns to Agent
all of Companys registered trademarks];
(j) (Intentionally Left Blank); and
(k) Company has executed and delivered to Bank such other documents and
instruments as Bank may reasonably deem necessary or appropriate in
connection with the Company's status as a Borrower under the Loan
Agreement and the Other Agreements, such documents and instruments to be
in forms similar to documents and instruments executed by other
Borrowers under the Loan Agreement and the Other Agreements.
EXECUTED as of the date first set forth above, intending to be legally
bound hereby.
TRINITY SPRINGS, INC.
By /s/ Xxxxxxx X. Xxxxx
Title Asst. Secretary
LASALLE BANK NATIONAL ASSOCIATION, a national banking association, as
Agent and a Lender
By /s/ Xxxxxx X. Xxxxxx
Title Senior Vice President
Revolving Loan Commitment: $35,892,947.00
Term Loan A Commitment: $773,720.00
Term Loan B Commitment: $3,333,000.00
GOLD BANK, a Kansas state bank, as a Lender
TRINITY SPRINGS, INC.
By /s/ Xxxx Xxxxxxxx
Title Vice President
Revolving Loan Commitment: $17,947,053.00
Term Loan A Commitment: $386,280.00
Term Loan B Commitment $1,667,000.00
REAFFIRMATION
Reference is hereby made to that certain Amended and Restated Loan and
Security Agreement dated as of September 30, 2004, among AMCON
Distributing Company, a Delaware corporation, (AMCON), The Beverage
Group, Inc., a Delaware corporation, (Beverage Group), Hawaiian Natural
Water Company, Inc., a Delaware corporation, (Hawaiian Natural),
Xxxxxxxxxx Natural Foods, Inc., a Florida corporation, (Xxxxxxxxxx
Natural), and Health Food Associates, Inc., an Oklahoma corporation,
(Health Food) (AMCON, Beverage Group, Hawaiian Natural, Xxxxxxxxxx
Natural, and Health Food are each referred to as a Borrower and are
collectively referred to as Borrowers) and LaSalle Bank National
Association, a national banking association (in its individual capacity,
LaSalle), as agent (in such capacity as agent, Agent) for itself, Gold
Bank, a Kansas state bank, and all other lenders from time to time a
party hereto (Lenders) (as amended or otherwise modified from time to
time, the "Loan Agreement").
Each Borrower hereby acknowledges receipt of copies of (i) that certain
Borrower Addition Agreement of even date herewith among Trinity Springs,
Inc., a Delaware corporation ("Company"), Agent, Gold Bank and the
Lenders (the "Borrower Addition Agreement") and (ii) all documents and
instruments contemplated by the Borrower Addition Agreement. Each
Borrower hereby reaffirms the validity of its Liabilities under the Loan
Agreement. Each Borrower acknowledges and agrees that the Company shall
hereafter be bound by as, and shall have the rights of, a Borrower under
the terms and conditions of the Loan Agreement and each Other Agreement,
as if it were a direct signatory thereto.
Capitalized terms used herein without definition shall have the meaning
ascribed to such terms in the Loan Agreement.
This Reaffirmation has been executed by Borrower as of the 15th day of
April, 2005.
AMCON DISTRIBUTING COMPANY
By /s/ Xxxxxxx X. Xxxxx
Title Vice President / CFO
THE BEVERAGE GROUP, INC.
By /s/ Xxxxxxx X. Xxxxx
Title Secretary
HAWAIIAN NATURAL WATER COMPANY, INC.
By Xxxxxxx X. Xxxxx
Title Secretary
XXXXXXXXXX NATURAL FOODS, INC.
By /s/ Xxxxxxx X. Xxxxx
Title Secretary
HEALTH FOOD ASSOCIATES, INC.
By /s/ Xxxxxxx X. Xxxxx
Title Secretary
ACCEPTED AND AGREED TO
AS OF THE DATE SET FORTH ABOVE
LASALLE BANK NATIONAL ASSOCIATION, a national banking association, as
Agent and a Lender
By /s/ Xxxxxx X. Xxxxxx
Title Senior Vice President
Revolving Loan Commitment: $35,892,947.00
Term Loan A Commitment: $773,720.00
Term Loan B Commitment: $3,333,000.00
GOLD BANK, a Kansas state bank, as a Lender
By /s/ Xxxx Xxxxxxxx
Title Vice President
Revolving Loan Commitment: $17,947,053.00
Term Loan A Commitment: $386,280.00
Term Loan B Commitment $1,667,000.00
REAFFIRMATION of GUARANTOR
Reference is hereby made to that certain Amended and Restated Loan and
Security Agreement dated as of September 30, 2004, among AMCON
Distributing Company, a Delaware corporation, (AMCON), The Beverage
Group, Inc., a Delaware corporation, (Beverage Group), Hawaiian Natural
Water Company, Inc., a Delaware corporation, (Hawaiian Natural),
Xxxxxxxxxx Natural Foods, Inc., a Florida corporation, (Xxxxxxxxxx
Natural), and Health Food Associates, Inc., an Oklahoma corporation,
(Health Food) (AMCON, Beverage Group, Hawaiian Natural, Xxxxxxxxxx
Natural, and Health Food are each referred to as a Borrower and are
collectively referred to as Borrowers) and LaSalle Bank National
Association, a national banking association (in its individual capacity,
LaSalle), as agent (in such capacity as agent, Agent) for itself, Gold
Bank, a Kansas state bank, and all other lenders from time to time a
party hereto (Lenders) (as amended or otherwise modified from time to
time, the "Loan Agreement"). Further reference is made to that certain
Continuing Unconditional Guaranty dated September 30, 2004 (as may have
been amended or otherwise modified from time to time, each the
Guaranty), executed by Xxxxxxx X. Xxxxxx in favor of Agent and Lenders.
The undersigned hereby acknowledges receipt of copies of (i) that
certain Borrower Addition Agreement of even date herewith among Trinity
Springs, Inc., Agent, Gold Bank and the Lenders (the "Borrower Addition
Agreement") and (ii) all documents and instruments contemplated by the
Borrower Addition Agreement. The undersigned hereby reaffirms the
validity of its guaranty under the Guaranty executed by it in favor of
Agent and Lenders.
This Reaffirmation has been executed by the undersigned as of the 15th
day of April, 2005.
/s/ Xxxxxxx X. Xxxxxx
