EXHIBIT 10.11
TENTH AMENDMENT TO THE AMENDED AND RESTATED LOAN AND
SECURITY AGREEMENT
THIS TENTH AMENDMENT TO THE AMENDED AND RESTATED LOAN AND SECURITY
AGREEMENT (the "Amendment") is made effective as of the 15th day of
October, 2008, by and among LASALLE BANK NATIONAL ASSOCIATION (in its
individual capacity, "LaSalle"), as agent (in such capacity as agent,
"Agent") for itself and all other lenders from time to time a party to
the Loan Agreement ("Lenders"), all other Lenders and AMCON
DISTRIBUTING COMPANY, a Delaware corporation, XXXXXXXXXX NATURAL
FOODS, INC., a Florida corporation, and HEALTH FOOD ASSOCIATES, INC.,
an Oklahoma corporation, (collectively, "Borrower").
PRELIMINARY STATEMENTS
(A) Borrower, Agent and Lenders executed a certain Amended and
Restated Loan and Security Agreement dated September 30, 2004 (as
amended, restated, extended or otherwise modified from time to time,
the "Loan Agreement") and various "Other Agreements" as defined
therein, in connection with certain loan facilities.
(B) Agent and Lenders have requested and Borrowers have agreed to
amend the Loan Agreement on the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the foregoing and such other
consideration as the parties mutually agree, the parties hereto agree
as follows:
AGREEMENT
1. PRELIMINARY STATEMENTS. The preliminary statements set forth
above are accurate, represent the intent of the parties hereto and are
incorporated herein by reference. Unless otherwise defined in this
Amendment, capitalized terms used herein will have the same meaning in
this Amendment as set forth in the Loan Agreement.
2. SPECIFIC AMENDMENTS TO LOAN AGREEMENT. Borrower, Lenders and
Agent hereby agree that the Loan Agreement is hereby amended and
modified as follows:
A. NEW DEFINITIONS. The following definitions are hereby added to
Section 1 of the Loan Agreement in alphabetical order:
"Dominion Account" shall have the meaning specified in subsection 8(a)
hereof.
"Systems Day One" shall mean the date upon which Agent's system of
record for loans and deposits shall convert to the system of record
for loans and deposits used by Bank of America, N.A."
B. REMOVED DEFINITION. The defined term "Lockbox Account" set forth
in Section 1 of the Loan Agreement is hereby deleted in its entirety.
C. AMCON COLLECTIONS. Subsection 8(a) of the Loan Agreement is
hereby amended and restated in its entirety as follows:
"(a) With respect to AMCON, Borrower shall direct all of its Account
Debtors to make all payments on the Accounts directly to a post office
box (the "Lock Box") designated by, and under the exclusive control
of, Agent, at a financial institution acceptable to Agent. Borrower
has established an account (the "Dominion Account") in Agent's name
with a financial institution acceptable to Agent, into which all
payments received in the Lock Box shall be deposited, and into which
Borrower will immediately deposit all payments received by Borrower on
Accounts in the identical form in which such payments were received,
whether by cash or check; provided that on or prior to Systems Day
One, at the request of Agent, the Dominion Account shall be changed to
Borrower's name for the benefit of Agent. If Borrower, any Affiliate
or Subsidiary, any shareholder, officer, director, employee or agent
of Borrower or any Affiliate or Subsidiary, or any other Person acting
for or in concert with Borrower shall receive any monies, checks,
notes, drafts or other payments relating to or as Proceeds of Accounts
or other Collateral, Borrower and each such Person shall receive all
such items in trust for, and as the sole and exclusive property of,
Agent and, immediately upon receipt thereof, shall remit the same (or
cause the same to be remitted) in kind to the Dominion Account. The
financial institution with which the Dominion Account is established
shall acknowledge and agree, in a manner satisfactory to Agent, that
the amounts on deposit in such Lock Box and Dominion Account are the
sole and exclusive property of Agent, that such financial institution
will follow the instructions of Agent with respect to disposition of
funds in the Lock Box and Dominion Account without further consent
from Borrower, that such financial institution has no right to setoff
against the Lock Box or Dominion Account or against any other account
maintained by such financial institution into which the contents of
the Lock Box or Dominion Account are transferred, and that such
financial institution shall wire, or otherwise transfer in immediately
available funds to Agent in a manner satisfactory to Agent, funds
deposited in the Dominion Account on a daily basis as such funds are
collected. Borrower agrees that all payments made to such Dominion
Account or otherwise received by Agent, whether in respect of the
Accounts or as Proceeds of other Collateral or otherwise (except for
proceeds of Collateral which are required to be delivered to the
holder of a Permitted Lien which is prior in right of payment), will
be applied on account of the Liabilities in accordance with the terms
of this Agreement. Borrower agrees to pay all customary fees, costs
and expenses in connection with opening and maintaining the Lock Box
and Dominion Account. All of such fees, costs and expenses if not
paid by Borrower, may be paid by Agent and in such event all amounts
paid by Agent shall constitute Liabilities hereunder, shall be payable
to Agent by Borrower upon demand, and, until paid, shall bear interest
at the highest rate then applicable to Loans hereunder. All checks,
drafts, instruments and other items of payment or Proceeds of
Collateral shall be endorsed by Borrower to Agent, and, if that
endorsement of any such item shall not be made for any reason, Agent
is hereby irrevocably authorized to endorse the same on Borrower's
behalf. For the purpose of this section, Borrower irrevocably hereby
makes, constitutes and appoints Agent (and all Persons designated by
Agent for that purpose) as Borrower's true and lawful attorney and
agent-in-fact (i) to endorse Borrower's name upon said items of
payment and/or Proceeds of Collateral and upon any Chattel Paper,
Document, Instrument, invoice or similar document or agreement
relating to any Account of Borrower or Goods pertaining thereto; (ii)
to take control in any manner of any item of payment or Proceeds
thereof and (iii) to have access to any lock box or postal box into
which any of Borrower's mail is deposited, and open and process all
mail addressed to Borrower and deposited therein.
D. OTHER COLLECTIONS. Subsection 8(b) of the Loan Agreement is
hereby amended and restated in its entirety as follows:
"(b) With respect to each Borrower other than AMCON, until such time
as Agent shall, in its sole discretion, after the occurrence of an
Event of Default, notify such Borrowers that Agent will require such
Borrowers to establish and maintain a Lock Box and Dominion Account,
such Borrowers shall collect and enforce all of their Accounts. All
costs of enforcement and collection of such Borrowers' Accounts shall
be borne solely by each such Borrower, whether the same are incurred
by Agent or by such Borrowers. Such Borrowers agree that, with
respect to all of such Borrowers' Accounts, the collection and
enforcement of such Accounts by such Borrowers shall be as Agent's
agent, and that all collections and proceeds thereof (and of all other
Collateral, including, without limitation, Inventory) received by such
Borrowers, Affiliate or any Subsidiary or any shareholder, officer,
director, employee or agent of such Borrowers or any Affiliate or
Subsidiary, or any other person acting for or in connection with such
Borrowers shall be received in trust for Agent and shall be promptly
turned over to Agent or another financial institution acceptable to
Agent in the precise form in which received, either by mailing the
same or delivering the same to Agent or another financial institution
acceptable to Agent not later than the Business Day following the
receipt thereof. Each such Borrower agrees that it will not
intermingle or permit the intermingling of such collections or
proceeds with any of such Borrower's other funds or property but will
hold such collections and proceeds separate and apart from such other
funds and property and upon an express trust for Agent. Such
collections and proceeds so turned over to Agent may be handled and
administered by Agent in and through a remittance or similar account,
but each Borrower acknowledges that the maintenance of such an account
is solely for the convenience of Agent in facilitating its own
operations and that each such Borrower has not and shall not have any
right, title or interest in any such account or in the amounts at any
time appearing to the credit thereof. If any of the such collections
and proceeds are turned over to another financial institution
acceptable to Agent, such financial institution shall acknowledge and
agree, in a manner satisfactory to Agent, that the collections and
proceeds so turned over and the remittance or similar account (a
"Local Depository Account") through which such collections and
proceeds may be handled and administered by said financial institution
are the sole and exclusive property of Agent, that such financial
institution will follow the instructions of Agent with respect to
disposition of funds in the Local Depository Account without further
consent from any such Borrower, that such financial institution has no
right to setoff against the Local Depository Account or against any
other account maintained by such financial institution into which the
contents of the Local Depository Account may be transferred, and that
such financial institution shall wire, or otherwise transfer in
immediately available funds in a manner satisfactory to Agent, funds
deposited in the Local Depository Account on a daily basis as such
funds are collected. At such time as Agent shall require any such
Borrower to maintain a Lock Box and Dominion Account following the
occurrence of an Event of Default such Borrower shall direct all of
its Account Debtors to make all payments on the Accounts directly to a
Lock Box designated by, and under the exclusive control of, Agent, at
a financial institution acceptable to Agent. Each such Borrower shall
establish a Dominion Account in Agent's name with a financial
institution acceptable to Agent, into which all payments received in
the Lock Box shall be deposited, and into which Borrower will
immediately deposit all payments received by Borrower on Accounts in
the identical form in which such payments were received, whether by
cash or check; provided that on or prior to Systems Day One, at the
request of Agent, the Dominion Account shall be changed to Borrower's
name for the benefit of Agent. If Borrower, any Affiliate or
Subsidiary, any shareholder, officer, director, employee or agent of
Borrower or any Affiliate or Subsidiary, or any other Person acting
for or in concert with Borrower shall receive any monies, checks,
notes, drafts or other payments relating to or as Proceeds of Accounts
or other Collateral, Borrower and each such Person shall receive all
such items in trust for, and as the sole and exclusive property of,
Agent and, immediately upon receipt thereof, shall remit the same (or
cause the same to be remitted) in kind to the Dominion Account. The
financial institution with which the Dominion Account is established
shall acknowledge and agree, in a manner satisfactory to Agent, that
the amounts on deposit in such Lock Box and Dominion Account are the
sole and exclusive property of Agent, that such financial institution
will follow the instructions of Agent with respect to disposition of
funds in the Lock Box and Dominion Account without further consent
from Borrower, that such financial institution has no right to setoff
against the Lock Box or Dominion Account or against any other account
maintained by such financial institution into which the contents of
the Lock Box or Dominion Account are transferred, and that such
financial institution shall wire, or otherwise transfer in immediately
available funds to Agent in a manner satisfactory to Agent, funds
deposited in the Dominion Account on a daily basis as such funds are
collected. Borrower agrees that all payments made to such Dominion
Account or otherwise received by Agent, whether in respect of the
Accounts or as Proceeds of other Collateral or otherwise (except for
proceeds of Collateral which are required to be delivered to the
holder of a Permitted Lien which is prior in right of payment), will
be applied on account of the Liabilities in accordance with the terms
of this Agreement. Borrower agrees to pay all customary fees, costs
and expenses in connection with opening and maintaining the Lock Box
and Dominion Account. All of such fees, costs and expenses if not
paid by Borrower, may be paid by Agent and in such event all amounts
paid by Agent shall constitute Liabilities hereunder, shall be payable
to Agent by Borrower upon demand, and, until paid, shall bear interest
at the highest rate then applicable to Loans hereunder. All checks,
drafts, instruments and other items of payment or Proceeds of
Collateral shall be endorsed by Borrower to Agent, and, if that
endorsement of any such item shall not be made for any reason, Agent
is hereby irrevocably authorized to endorse the same on Borrower's
behalf. For the purpose of this section, Borrower irrevocably hereby
makes, constitutes and appoints Agent (and all Persons designated by
Agent for that purpose) as Borrower's true and lawful attorney and
agent-in-fact (i) to endorse Borrower's name upon said items of
payment and/or Proceeds of Collateral and upon any Chattel Paper,
Document, Instrument, invoice or similar document or agreement
relating to any Account of Borrower or Goods pertaining thereto; (ii)
to take control in any manner of any item of payment or Proceeds
thereof and (iii) to have access to any lock box or postal box into
which any of Borrower's mail is deposited, and open and process all
mail addressed to Borrower and deposited therein."
E. APPLICATION OF PAYMENTS. Subsection 8(d) of the Loan Agreement is
hereby amended to add the following at the end of such subsection:
"Notwithstanding the foregoing, on the first day of the month during
which Systems Day One occurs, for purposes of determining the amount
of Loans available for borrowing purposes, the ledger balance in the
main Dominion Account as of the end of a Business Day shall be applied
to the Liabilities at the beginning of the next Business Day. However,
solely for purposes of computing interest hereunder, and in addition
to Agent's standard fees and charges relating to the Dominion Account,
any application by Agent of such balance to the Liabilities shall be
deemed to be made on the same Business Day as application to the
Liabilities as set forth in the preceding sentence. If, as a result
of such application, a credit balance exists, the balance shall not
accrue interest in favor of Borrower and shall be made available to
Borrower as long as no Event of Default exists. Borrower irrevocably
waives the right to direct the application of any payments or
Collateral proceeds, and agrees that Agent shall have the continuing,
exclusive right to apply and reapply same against the Liabilities, in
such manner as Agent deems advisable, notwithstanding any entry by
Agent in its records."
3. CROSS DEFAULT AND CROSS COLLATERALIZATION. A default in the
payment or performance of Borrower's obligations under this Amendment
will constitute an Event of Default under the Loan Agreement and in
such event Agent will be entitled to exercise any and all remedies
available hereunder. Borrower, Lenders and Agent further agree that
the Other Agreements securing the Loan Agreement are hereby modified
so that each Other Agreement will hereafter secure the Loan Agreement.
4. RATIFICATION. The parties hereto ratify and reaffirm that all
terms, conditions and provisions of the Loan Agreement, and the Other
Agreements remain in full force and effect except to the extent
expressly modified by the terms of this Amendment.
5. RENEWAL. To the extent that any payment or payments made to Agent
or Lenders under this Amendment, the Loan Agreement or any of the
Other Agreements, as each may be amended, are subsequently
invalidated, declared to be fraudulent or preferential, set aside
and/or required to be repaid to a trustee, to Borrower, whether
directly or indirectly as a debtor-in-possession, or to a receiver or
any other party under any bankruptcy law, or other state or federal
law, then the portion of the indebtedness of Borrower intended to have
been satisfied by such payment or payments will be revived and will
continue in full force and effect as if such payment or payments had
never been received by Agent or Lenders.
6. REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants
to Agent and Lenders as follows:
(A) All of the representations and warranties of Borrower in the Loan
Agreement and all of the Other Agreements, as each may be amended, are
true and correct as of the date hereof;
(B) Except as otherwise specifically stated herein, no Event of
Default has occurred or will occur as a result of the execution,
delivery, and performance of this Amendment; and
(C) This Amendment has been duly authorized, executed and delivered
and is a legally valid, binding, joint and several obligation of
Borrower and is enforceable against Borrower in accordance with its
terms.
7. MISCELLANEOUS.
(A) No inference in favor of, or against, any party will be drawn
from the fact that such party has drafted any portion of this
Amendment, the Loan Agreement or any Other Agreement, as each may be
amended.
(B) This Amendment may be executed in any number of counterparts,
each of which will be deemed to be an original but all of which taken
together will constitute one and the same agreement.
(C) This Amendment will be governed by and construed under the laws
of the State of Illinois.
(D) This Amendment will be binding upon and will inure to the benefit
of the parties hereto and to their respective successors and assigns.
8. WAIVER OF JURY TRIAL. AGENT, LENDERS AND BORROWER WAIVE THE RIGHT
TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, OR RELATED
TO, THE SUBJECT MATTER OF THIS AMENDMENT. THIS WAIVER IS KNOWINGLY,
INTENTIONALLY AND VOLUNTARILY MADE BY BORROWER AND BORROWER
ACKNOWLEDGES THAT NEITHER AGENT NOR LENDERS NOR ANY PERSON ACTING ON
BEHALF OF AGENT OR LENDERS HAS MADE ANY REPRESENTATIONS OF FACT TO
INDUCE THIS WAIVER OF TRIAL BY JURY OR IN ANY WAY TO MODIFY OR NULLIFY
ITS EFFECT. BORROWER FURTHER ACKNOWLEDGES THAT IT HAS BEEN
REPRESENTED (OR HAS THE OPPORTUNITY TO BE REPRESENTED) IN THE SIGNING
OF THIS AMENDMENT AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT
LEGAL COUNSEL, SELECTED OF ITS OWN FREE WILL, AND IT HAS HAD THE
OPPORTUNITY TO DISCUSS THIS WAIVER WITH COUNSEL. BORROWER FURTHER
ACKNOWLEDGES THAT IT HAS READ AND UNDERSTAND THE MEANING AND
RAMIFICATIONS OF THIS WAIVER PROVISION.
[signature page to follow]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by an officer duly authorized to so execute and bind said
parties effective as of the day and year first written above.
AMCON DISTRIBUTING COMPANY, as Borrower
By: /s/ Xxxxxx X. Xxxxxxx
Print Name: Xxxxxx X. Xxxxxxx
Title: CFO/XX
XXXXXXXXXX NATURAL FOODS, INC., as Borrower
By: /s/ Xxxxxxxx X. Xxxx
Print Name: Xxxxxxxx X. Xxxx
Title: VP
HEALTH FOOD ASSOCIATES, INC., as Borrower
By: /s/ Xxxxxxxx X. Xxxx
Print Name: Xxxxxxxx X. Xxxx
Title: VP
LASALLE BANK NATIONAL ASSOCIATION, as Agent and a Lender
By: /s/ Xxxxx Xxxxxxx
Print Name: Xxxxx Xxxxxxx
Title: VP
M&I XXXXXXXX & XXXXXX BANK (successor to Gold Bank), as Lender
By: /s/ Xxx X. Xxxxxx, Xx.
Print Name: Xxx X. Xxxxxx, Xx.
Title: EVP
By: /s/ Xxx Xxxxxx
Print Name: Xxx Xxxxxx
Title: AVP
