EXHIBIT 10.6
February 8, 2006
AMCON Distributing Company
0000 Xxxxxxxxx Xxxx
Xxxxx, Xxxxxxxx 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: FIFTH AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY
AGREEMENT (THIS "AMENDMENT")
Gentlemen:
AMCON Distributing Company, a Delaware corporation, ("AMCON"),
Xxxxxxxxxx Natural Foods, Inc., a Florida corporation, ("Xxxxxxxxxx
Natural"), Hawaiian Natural Water Company, Inc., a Delaware
corporation, ("Hawaiian Natural"), Health Food Associates, Inc., an
Oklahoma corporation, ("Health Food"), and Trinity Springs, Inc., a
Delaware corporation, ("Trinity Springs"), (AMCON, Xxxxxxxxxx Natural,
Hawaiian Natural, Health Food, and Trinity Springs 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 party to the Loan Agreement referred
to below ("Lenders"), have entered into that certain Amended and
Restated Loan and Security Agreement dated September 30, 2004 (the
"Loan Agreement"). From time to time thereafter, Borrowers, Agent and
Lenders may have executed various amendments (each an "Amendment" and
collectively the "Amendments") to the Loan Agreement (the Loan
Agreement and the Amendments hereinafter are referred to,
collectively, as the "Agreement"). Borrowers, 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 "Pro Rata Share", "Rate Hedging
Obligations", "Subsidiary Borrower", and "Subsidiary Sublimit" as set
forth in Section 1 of the Agreement are amended and restated in full,
to read as follows:
"PRO RATE SHARE" shall mean at any time, with respect to any Lender, a
fraction (expressed as a percentage in no more than nine (9) decimal
places), the numerator of which shall be the sum of the Revolving Loan
Commitment and Term Loan B Commitment, of such Lender at such time and
the denominator of which shall be the Maximum Loan Limit at such time.
"RATE HEDGING OBLIGATIONS" shall mean any and all obligations of
Borrowers to the Agent and/or the Lenders, whether absolute or
contingent and howsoever and whensoever created, arising, evidenced or
acquired (including all renewals, extensions and modifications thereof
and substitutions therefor) under (1) any and all agreements designed
to protect Borrowers from the fluctuations of interest rates, exchange
rates or forward rates applicable to such party's assets, liabilities
or exchange transactions, including, but not limited to: interest rate
swap agreements, dollar-denominated or cross-currency interest rate
exchange agreements, forward currency exchange agreements, interest
rate cap, floor or collar agreements, forward rate currency agreements
relating to interest options, puts and warrants, and (2) any and all
agreements relating to cancellations, buy backs, reversals,
terminations or assignments of any of the foregoing. An agreement of
the type described in clause (1) and/or clause (2) of the foregoing
definition is referred to herein as a "Rate Hedging Agreement".
"SUBSIDIARY BORROWER" shall mean each of Xxxxxxxxxx Natural, Hawaiian
Natural, Health Food and Trinity.
"SUBSIDIARY SUBLIMIT" shall mean the sum of the Retail Inventory
Sublimit and the Beverage Sublimit, as such amount is reduced from
time to time pursuant to subsection 2(d)(iv) hereof.
(b) Section 1 of the Agreement is amended by deleting therefrom the
definitions of "Subsidiary Accounts Sublimit" and "Subsidiary
Inventory Sublimit".
(c) Section 1 of the Agreement is amended by adding thereto in
alphabetical order the following definitions of "Beverage Accounts
Sublimit", "Beverage Inventory Sublimit", "Beverage Sublimit",
"Beverage Subsidiary", "Retail Inventory Sublimit", and "Retail
Subsidiary":
"BEVERAGE ACCOUNTS SUBLIMIT" shall mean Seven Hundred Fifty Thousand
and No/100 Dollars ($750,000.00), as such amount is reduced from time
to time pursuant to subsection 2(d)(iv) hereof.
"BEVERAGE INVENTORY SUBLIMIT" shall mean Nine Hundred Thousand and
No/100 Dollars ($900,000.00), as such amount is reduced from time to
time pursuant to subsection 2(d)(iv) hereof.
"BEVERAGE SUBLIMIT" shall mean the sum of the Beverage Accounts
Sublimit and the Beverage Inventory Sublimit, as such amount is
reduced from time to time pursuant to subsection 2(d)(iv) hereof.
"BEVERAGE SUBSIDIARY" shall mean each of Hawaiian Natural and Trinity.
"RETAIL INVENTORY SUBLIMIT" shall mean Four Million Five Hundred
Thousand and No/100 Dollars ($4,500,000.00), as such amount is reduced
from time to time pursuant to subsection 2(d)(iv) hereof.
"RETAIL SUBSIDIARY" shall mean each of Xxxxxxxxxx Natural and Health
Food.
(d) Any reference in the Agreement to "Term Loan Commitment A"
shall be deemed a reference to "Term Loan A Commitment".
(e) Any reference in the Agreement to "Term Loan Commitment B"
shall be deemed a reference to "Term Loan B Commitment".
(f) Subsection 2(a) of the Agreement is amended and restated in
full, to read 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 or
Fifty-Five Million and No/100 Dollars ($55,000,000.00), whichever is
less; plus
(ii) 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
(iii) 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 (ii) above) or Twelve Million and No/100 Dollars
($12,000,000.00), whichever is less; plus
(iv) Up to sixty percent (60%) of the lower of cost or market
value of the Retail Subsidiaries' Eligible Inventory or the Retail
Inventory Sublimit, whichever is less; plus
(v) Up to sixty percent (60%) of the lower of cost or market
value of the Beverage Subsidiaries' Eligible Inventory or the Beverage
Inventory Sublimit, whichever is less; plus
(vi) 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 the
Beverage Subsidiaries' business) of the Beverage Subsidiaries'
Eligible Accounts or the Beverage Accounts Sublimit, whichever is
less; plus
(vii) Up to One Million Five Hundred Thousand and No/100 Dollars
($1,500,000.00) as a special accommodation ("Special Accommodation
Overadvance") 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; minus
(iix) 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 (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 (i) the 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
exceed 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.
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) 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 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, 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, 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.
(g) Subsection 2(d)(iii) of the Agreement is amended and restated
in full, to read as follows:
(iii) Repayment of Term Loan B. Term Loan B shall be repaid in
monthly installments of (i) Two Hundred Seventy-Five Thousand and
No/100 Dollars ($275,000.00) payable commencing on May 1, 2005 and on
the corresponding day of each month thereafter through and until
February 28, 2006, and (ii) One Hundred Thousand and No/100 Dollars
($100,000.00) payable commencing on March 1, 2006 and on the
corresponding day of each month thereafter; provided that any
remaining outstanding principal balance of Term Loan B shall be repaid
at the end of the Original Term or any Renewal Term if this Agreement
is renewed pursuant to Section 10 hereof. If any such payment due
date is not a Business Day, then such payment may be made on the next
succeeding Business Day and such extension of time shall be included
in the computation of the amount of interest and fees due hereunder.
(h) Subsection 2(d)(iv) of the Agreement is amended and restated in
full, to read as follows:
(iv) Mandatory Prepayments of the Term Loans and Reductions in
Availability.
(A) Sales of Assets and/or Equity Interests. (i) Other than
with respect to a Subsidiary Borrower Sale, upon receipt of the
proceeds of the sale or other disposition of any Equipment or real
property of a Borrower which is subject to a mortgage in favor of
Agent, or if any of the Equipment or real property subject to such
mortgage is damaged, destroyed or taken by condemnation in whole or in
part, the proceeds thereof shall be paid by such Borrower to Agent,
for the benefit of Agent and Lenders, as a mandatory prepayment of the
Term Loan B, such payment to be applied against the remaining
installments of principal in the inverse order of their maturities
until such Term Loan B is repaid in full, and then against Term Loan A
in the inverse order of their maturities until such Term Loan A is
repaid in full, and then against the other Liabilities, as determined
by Agent, in its sole discretion, and (ii) with respect to a
Subsidiary Borrower Sale, provided that no Event of Default is then in
existence, (I) the proceeds thereof shall be applied to the
outstanding principal balance of Loans to such Subsidiary Borrower,
and (II) in the event such Subsidiary Borrower is a Retail Subsidiary,
such application shall result in a mandatory reduction of the Retail
Inventory Sublimit (in such order and amount as Agent shall determine
in its sole discretion) and/or in the event such Subsidiary Borrower
is a Beverage Subsidiary, such application shall result in a mandatory
reduction of the Beverage Sublimit (by application to the Beverage
Accounts Sublimit and/or the Beverage Inventory Sublimit in such order
and amount as Agent shall determine in its sole discretion), and (III)
then the proceeds thereof shall be applied against the other
Liabilities, as determined by Agent, in its sole discretion, provided
further that upon the existence of an Event of Default, the proceeds
thereof shall be applied to the Liabilities in such order as Agent
shall determine in its sole discretion.
(B) Raising of Equity/Incurrence of Subordinated Debt. In the
event AMCON or any Subsidiary Borrower causes any equity to be
contributed or incurs indebtedness on a subordinated basis and AMCON
elects to have such proceeds applied to the outstanding principal
balance of Loans to the Subsidiary Borrowers, then provided that Agent
has consented to the contribution of equity or incurrence of
indebtedness (which consent shall not be unreasonably withheld) and no
Event of Default is then in existence, (i) in the case of AMCON, (I)
the proceeds thereof shall be applied to the outstanding principal
balance of Loans to the Subsidiary Borrowers in such order as Agent
shall determine in its sole discretion, and (II) in the event such
proceeds are applied to the outstanding principal balance of Loans to
a Retail Subsidiary, such application shall result in a mandatory
reduction of the Retail Inventory Sublimit (in such order and amount
as Agent shall determine in its sole discretion) and/or in the event
such proceeds are applied to the outstanding principal balance of
Loans to a Beverage Subsidiary, such application shall result in a
mandatory reduction of the Beverage Sublimit (by application to the
Beverage Accounts Sublimit and/or the Beverage Inventory Sublimit in
such order and amount as Agent shall determine in its sole
discretion), and (III) then the proceeds thereof shall be applied
against the other Liabilities, as determined by Agent, in its sole
discretion, and (ii) in the case of a Subsidiary Borrower, (I) the
proceeds thereof shall be applied to the outstanding principal balance
of Loans to such Subsidiary Borrower in such order as Agent shall
determine in its sole discretion, and (II) in the event such proceeds
are applied to the outstanding principal balance of Loans to a Retail
Subsidiary, such application shall result in a mandatory reduction of
the Retail Inventory Sublimit (in such order and amount as Agent shall
determine in its sole discretion) and/or in the event such proceeds
are applied to the outstanding principal balance of Loans to a
Beverage Subsidiary, such application shall result in a mandatory
reduction of the Beverage Sublimit (by application to the Beverage
Accounts Sublimit and/or the Beverage Inventory Sublimit in such order
and amount as Agent shall determine in its sole discretion), and (III)
then the proceeds thereof shall be applied against the other
Liabilities, as determined by Agent, in its sole discretion.
(C) Payments by Guarantor. Upon receipt of any payments made by
Xxxxxxx Xxxxxx pursuant to his Continuing Unconditional Guaranty of
even date herewith (as same may be amended, restated, supplemented or
otherwise modified from time to time), such proceeds shall be applied
by Agent as a mandatory prepayment of the Term Loan B, such payment to
be applied against the remaining installments of principal in the
inverse order of their maturities until such Term Loan B is repaid in
full, and (i) then such payment shall be applied to the outstanding
principal balance of Loans to the Subsidiary Borrowers in such order
as Agent shall determine in its sole discretion, and (ii) in the event
such payment is applied to the outstanding principal balance of Loans
to a Retail Subsidiary, such application shall result in a mandatory
reduction of the Retail Inventory Sublimit (in such order and amount
as Agent shall determine in its sole discretion) and/or in the event
such payment is applied to the outstanding principal balance of Loans
to a Beverage Subsidiary, such application shall result in a mandatory
reduction of the Beverage Sublimit (by application to the Beverage
Accounts Sublimit and/or the Beverage Inventory Sublimit in such order
and amount as Agent shall determine in its sole discretion), and (iii)
then such payment shall be applied against the other Liabilities, as
determined by Agent, in its sole discretion.
(i) Subsection 4(a) of the Agreement is amended and restated in
full, to read as follows:
(a) Interest Rate.
Subject to the terms and conditions set forth below, the Loans shall
bear interest at the per annum rate of interest set forth in
subsection (i), (ii) or (iii) below:
(i) Revolving Loans (other than Revolving Loans described in
subsection (ii) below) and Term Loan A shall bear interest at the
Prime Rate in effect from time to time, payable on the last Business
Day of each month in arrears; provided, however, that any Revolving
Loan (or portion thereof) that constitutes a Special Accommodation
Overadvance shall bear interest at the rate of two percent (2%) per
annum in excess of the Prime Rate, payable on the last Business Day of
each month in arrears. 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.
(ii) Each Revolving Loan that constitutes a LIBOR Rate Loan as
of February 8, 2006 may continue as a LIBOR Rate Loan until the
latest to occur of (a) the last day of such Revolving Loan's Interest
Period, (b) the termination date of the Rate Hedging Agreement related
to such LIBOR Rate Loan, and (c) June 2, 2006 (the "LIBOR Termination
Date"). Upon such LIBOR Rate Loan's LIBOR Termination Date, such
LIBOR Rate Loan shall be converted to a Prime Rate Loan. Each
Revolving Loan that constitutes a LIBOR Rate Loan as of February 8,
2006 shall bear interest at two hundred fifty (250) basis points in
excess of the LIBOR Rate for the applicable Interest Period, such rate
to remain fixed for such Interest Period. "Interest Period" shall
mean any continuous period of one (1) month, two (2) months, three (3)
months or six (6) months, as selected from time to time by the
Borrower Representative requesting such LIBOR Rate Loan by irrevocable
notice (in writing, by telecopy, telex, electronic mail or cable)
given to Agent not less than three (3) Business Days prior to the
first day of each respective Interest Period. Interest shall be
payable on the last Business Day of each month in arrears and on the
last Business Day of such Interest Period.
(iii) Upon the occurrence of an Event of Default and during the
continuance thereof, the Loans shall bear interest at the rate of two
percent (2.0%) per annum in excess of the interest rate otherwise
payable thereon, which interest shall be payable on demand. All
interest shall be calculated on the basis of a 360-day year.
(j) Subsection 4(b)(i) of the Agreement is amended and restated in
full, to read as follows:
(i) Notwithstanding anything in this Agreement to the contrary,
on and after February 8, 2006, Borrowers shall not be permitted to
request that Revolving Loans be made as LIBOR Rate Loans.
(k) Subsection 13(b) is amended and restated in full, to read as
follows:
(b) Indebtedness.
No Borrower shall create, incur, assume or become obligated (directly
or indirectly), for any loans or other indebtedness for borrowed money
other than the Loans, except that a Borrower may (i) borrow money from
a Person other than Agent and Lenders on an unsecured and subordinated
basis if a subordination agreement in favor of Agent for its benefit
and the benefit of the other Lenders and in form and substance
satisfactory to the Agent is executed and delivered to Agent relative
thereto; (ii) maintain its present indebtedness listed on Schedule
11(n) hereto; (iii) incur unsecured indebtedness to trade creditors in
the ordinary course of business; (iv) incur purchase money
indebtedness or capitalized lease obligations in connection with
Capital Expenditures permitted pursuant to subsection 14(c) hereof;
(v) in the case of AMCON, maintain its existing loans to Trinity
described in and in accordance with subsection 13(f) hereof, (vi)
together with each other Borrower, incur operating lease obligations
requiring payments not to exceed Six Million and No/100 Dollars
($6,000,000.00) in the aggregate for all Borrowers during any Fiscal
Year of Borrowers; and (vii) incur Rate Hedging Obligations, provided,
however, that the aggregate outstanding Rate Hedging Obligations owing
by all Borrowers shall not at any time exceed Twenty Million and
No/100 Dollars ($20,000,000.00).
(l) Subsection 13(f) of the Agreement is amended and restated in
full, to read as follows:
(f) Investments; Loans.
No Borrower shall purchase or otherwise acquire, or contract to
purchase or otherwise acquire, the obligations or stock of any Person,
other than direct obligations of the United States; nor shall a
Borrower lend or otherwise advance funds to any Person except for (x)
advances made to employees, officers and directors for travel and
other expenses arising in the ordinary course of business, and (y)
loans in existence as of the date hereof from AMCON to Trinity in an
aggregate amount not to exceed $1,552,000.00, as evidenced by that
certain Secured Promissory Note dated June 17, 2004 in the face amount
of $1,000,000.00, provided that such secured indebtedness is
collateral assigned to Agent for the benefit of Agent and Lenders,
provided further, that with respect to all such loans from AMCON to
Trinity, Trinity shall execute and deliver to Agent a Continuing
Unconditional Guaranty, Security Agreement and Uniform Commercial Code
Financing Statement.
(m) Subsection 14(a) of the Agreement is amended and restated in
full, to read as follows:
(a) Intentionally omitted.
(n) Subsection 14(b) of the Agreement is amended and restated in
full, to read as follows:
(b) Intentionally omitted.
(o) LaSalle's "Revolving Loan Commitment" as set forth on the
signature page to the Agreement is amended and restated in full, to
read as follows:
Revolving Loan Commitment: $36,667,000.00
(p) Gold Bank's "Revolving Loan Commitment" as set forth on the
signature page to the Agreement is amended and restated in full, to
read as follows:
Revolving Loan Commitment: $18,333,000.00
2. This Amendment shall not become effective until each of the
following conditions precedent has been satisfied:
(a) Agent shall have received this Amendment and the Reaffirmation
and Amendment of Guaranty attached hereto, duly executed by the
parties hereto and thereto; and
(b) Agent shall have received (i) an Amended and Restated Revolving
Note made by the Borrowers in favor of LaSalle in the original
principal amount of Thirty-Six Million Six Hundred Sixty-Seven
Thousand and No/100 Dollars ($36,667,000.00), (ii) an Amended and
Restated Revolving Note made by the Borrowers in favor of Gold Bank in
the original principal amount of Eighteen Million Three Hundred
Thirty-Three Thousand and No/100 Dollars ($18,333,000.00), (iii) an
Amended and Restated Term Note A made by the Borrowers in favor of
LaSalle in the original principal amount of Six Hundred Four Thousand
and 03/100 Dollars ($604,000.03), (iv) an Amended and Restated Term
Note A made by the Borrowers in favor of Gold Bank in the original
principal amount of Three Hundred Two Thousand and 02/100 Dollars
($302,000.02), (v) an Amended and Restated Term Note B made by the
Borrowers in favor of LaSalle in the original principal amount of One
Million Five Hundred Thousand and 00/100 Dollars ($1,500,000.00), (vi)
an Amended and Restated Term Note B made by the Borrowers in favor of
Gold Bank in the original principal amount of Seven Hundred Fifty
Thousand and 00/100 Dollars ($750,000.00), and (vii) an Amended and
Restated Lock Box and Blocked Account Agreement among Borrowers, Agent
and LaSalle, in each case duly executed by the parties thereto and in
each case in form and substance satisfactory to Agent.
3. The representations and warranties set forth in Section 11 of the
Agreement shall be deemed remade as of the date hereof by each
Borrower, except that any and all references to the Agreement in such
representations and warranties shall be deemed to include this
Amendment. No Event of Default has occurred and is continuing and no
event has occurred and is continuing which, with the lapse of time,
the giving of notice, or both, would constitute an Event of Default
under the Agreement.
4. Borrowers agree to pay on demand all costs and expenses of or
incurred by Agent (including, but not limited to, legal fees and
expenses) in connection with the negotiation, preparation, execution
and delivery of this Amendment.
5. This Amendment may be executed in two or more counterparts, each
of which shall be deemed an original, and all of which together shall
constitute one and the same instrument.
6. Except as expressly amended hereby, the Agreement and the Other
Agreements are hereby ratified and confirmed by the parties hereto and
remain in full force and effect in accordance with the terms thereof.
Each Borrower hereby reaffirms its grant of the security interest in
the Collateral.
7. This Amendment shall be governed by and construed under the laws
of the State of Illinois, without regard to conflict of laws
principles of such State.
LASALLE BANK NATIONAL ASSOCIATION, a national banking association, as
Agent and a Lender
By: /s/ Xxxxxxx Xxxxxxx
Title: Vice President
GOLD BANK, a Kansas state bank, as a Lender
By: /s/ Xxxx Xxxxxxxx
Title: Vice President
ACKNOWLEDGED AND AGREED TO this 8th day of February, 2006:
AMCON DISTRIBUTING COMPANY
By: /s/ Xxxxxxx X. Xxxxx
Title: Vice President & Chief Financial Officer
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
REAFFIRMATION AND AMENDMENT OF GUARANTY
Reference is hereby made to that certain Continuing Unconditional
Guaranty dated as of September 30, 2004 executed by the undersigned in
favor of Agent and Lenders (as amended, restated, supplemented or
otherwise modified from time to time, the "Guaranty").
The undersigned hereby (i) acknowledges receipt of a copy of the
foregoing Fifth Amendment to Amended and Restated Loan and Security
Agreement dated as of February 8, 2006 among Borrowers, Agent and
Lenders (the "Fifth Amendment"), (ii) consents to the Fifth Amendment
(including, without limitation, Section 1(h) thereof), (iii)
acknowledges and agrees that "Borrowers", as such term is defined in
the Guaranty, means AMCON, Xxxxxxxxxx Natural, Hawaiian Natural,
Health Food and Trinity Springs, (iv) acknowledges and agrees that
"Subsidiary Borrowers", as such term is defined in the Guaranty, means
Xxxxxxxxxx Natural, Hawaiian Natural, Health Food and Trinity Springs,
(v) acknowledges and agrees that the Subsidiary Sublimit (as defined
in the Agreement) shall reduce from time to time only in accordance
with the Agreement, (vi) acknowledges and agrees that, except as
modified by this Reaffirmation and Amendment of Guaranty, the Guaranty
and all of the terms and provisions contained therein are hereby
ratified and reaffirmed, and (vii) acknowledges and agrees that,
except as modified by this Reaffirmation and Amendment of Guaranty,
the Guaranty remains in full force and effect. All capitalized terms
used but not defined in this Ratification and Amendment of Guaranty
shall have the respective meanings assigned thereto in the Fifth
Amendment.
IN WITNESS WHEREOF, the undersigned has duly executed this
Reaffirmation and Amendment of Guaranty on and as of February 8, 2006.
/s/ Xxxxxxx X. Xxxxxx
