CONTINUING UNCONDITIONAL GUARANTY
THIS GUARANTY (this "Guaranty") is made as of February 25, 1998, by AMCON
DISTRIBUTING COMPANY, a Delaware corporation (hereinafter, together with its
successors and permitted assigns, the "Guarantor"), to and for the benefit of
LASALLE NATIONAL BANK, a national banking association (hereinafter, together
with its successors and assigns, the "Bank").
R E C I T A L S:
WHEREAS, Food For Health Co., Inc. (the "Borrower") has entered into a
Loan and Security Agreement dated as of the date hereof (the "Loan Agreement")
with Bank pursuant to which Bank has made or may from time to time hereafter
make loans and advances to or extend other financial accommodations to
Borrower;
WHEREAS, the undersigned is desirous of having Bank extend and/or continue
the extension of credit to Borrower and Bank has required that Guarantor
execute and deliver this Guaranty to Bank as a condition to the extension and
continuation of credit by Bank; and
WHEREAS, the extension and/or continued extension of credit, as aforesaid,
by Bank is necessary and desirable to the conduct and operation of the
business of Borrower and will inure to the financial benefit of Guarantor;
NOW, THEREFORE, for value received and in consideration of any loan,
advance, or financial accommodation of any kind whatsoever heretofore, now or
hereafter made, given or granted to the Borrower by Bank (including, without
limitation, the Loans as defined in, and made or to be made by Bank to
Borrower pursuant to the Loan Agreement), Guarantor unconditionally guaranties
(i) the full and prompt payment when due, whether at maturity or earlier, by
reason of acceleration or otherwise, and at all times thereafter, of all of
the indebtedness, liabilities and obligations of every kind and nature of
Borrower to Bank or any parent, affiliate or subsidiary of Bank (the term
"Bank" as used hereafter shall include such parents, affiliates and
subsidiaries), howsoever created, arising or evidenced, whether direct or
indirect, absolute or contingent, joint or several, now or hereafter existing,
or due or to become due, and howsoever owned, held or acquired by Bank,
whether through discount, overdraft, purchase, direct loan or as collateral or
otherwise, including without limitation all Liabilities (as defined in the
Loan Agreement) and (ii) the prompt, full and faithful discharge by Borrower
of each and every term, condition, agreement, representation and warranty now
or hereafter made by Borrower to Bank (all such indebtedness, liabilities and
obligations being hereinafter referred to as the "Guarantied Liabilities").
Guarantor further agrees to pay all costs and expenses, including, without
limitation, all court costs and reasonable attorneys' and paralegals' fees
paid or incurred by Bank in endeavoring to collect all or any part of the
Guarantied Liabilities from, or in prosecuting any action against, Guarantor
or any other guarantor of all or any part of the Guarantied Liabilities. All
amounts payable by Guarantor under this Guaranty shall be payable upon demand
by Bank.
Notwithstanding any provision of this Guaranty to the contrary, it is
intended that this Guaranty, and any liens and security interests granted by
Guarantor to secure this Guaranty, not constitute a "Fraudulent Conveyance".
For purposes hereof, "Fraudulent Conveyance" means a fraudulent conveyance
under Section 548 of the "Bankruptcy Code" (as hereinafter defined) or a
fraudulent conveyance or fraudulent transfer under the provisions of any
applicable fraudulent conveyance or fraudulent transfer law or similar law of
any state, nation or other governmental unit, as in effect from time to time.
Consequently, Guarantor agrees that if the Guaranty, or any liens or security
interests securing this Guaranty, would, but for the application of this
sentence, constitute a Fraudulent Conveyance, this Guaranty and each such lien
and security interest shall be valid and enforceable only to the maximum
extent that would not cause this Guaranty or such lien or security interest to
constitute a Fraudulent Conveyance, and this Guaranty shall automatically be
deemed to have been amended accordingly at all relevant times.
Guarantor hereby agrees that, except as hereinafter provided, its
obligations under this Guaranty shall be unconditional, irrespective of (i)
the validity or enforceability of the Guarantied Liabilities or any part
thereof, or of any promissory note or other document evidencing all or any
part of the Guarantied Liabilities, (ii) the absence of any attempt to
collect the Guarantied Liabilities from Borrower or any other guarantor or
other action to enforce the same, (iii) the waiver or consent by Bank with
respect to any provision of any instrument evidencing the Guarantied
Liabilities, or any part thereof, or any other agreement heretofore, now or
hereafter executed by a Borrower and delivered to Bank, (iv) failure by Bank
to take any steps to perfect and maintain its security interest in, or to
preserve its rights to, any security or collateral for the Guarantied
Liabilities, (v) the institution of any proceeding under Chapter 11 of Title
11 of the United States Code (11 U.S.C. Sec. 101 et seq.), as amended (the
"Bankruptcy Code"), or any similar proceeding, by or against Borrower, or
Bank's election in any such proceeding of the application of Section
1111(b)(2) of the Bankruptcy Code, (vi) any borrowing or grant of a security
interest by Borrower as debtor-in-possession, under Section 364 of the
Bankruptcy Code, (vii) the disallowance, under Section 502 of the Bankruptcy
Code, of all or any portion of Bank's claim(s) for repayment of the Guarantied
Liabilities, or (viii) any other circumstance which might otherwise constitute
a legal or equitable discharge or defense of a guarantor.
Guarantor hereby waives diligence, presentment, demand of payment, filing
of claims with a court in the event of receivership or bankruptcy of Borrower,
protest or notice with respect to the Guarantied Liabilities and all demands
whatsoever, and covenants that this Guaranty will not be discharged, except by
complete performance of the obligations and liabilities contained herein.
Upon any default by Borrower as provided in any instrument or document
evidencing all or any part of the Guarantied Liabilities, including without
limitation the Loan Agreement, Bank may, at its sole election, proceed
directly and at once, without notice, against Guarantor to collect and recover
the full amount or any portion of the Guarantied Liabilities, without first
proceeding against Borrower, or any other person, firm, or corporation, or
against any security or collateral for the Guarantied Liabilities.
Bank is hereby authorized, without notice or demand and without affecting
the liability of Guarantor hereunder, to at any time and from time to time (i)
renew, extend, accelerate or otherwise change the time for payment of, or
other terms relating to, the Guarantied Liabilities or otherwise modify, amend
or change the terms of any promissory note or other agreement, document or
instrument now or hereafter executed by Borrower and delivered to Bank; (ii)
accept partial payments on the Guarantied Liabilities; (iii) take and hold
security or collateral for the payment of the Guarantied Liabilities
guaranteed hereby, or for the payment of this Guaranty, or for the payment of
any other guaranties of the Guarantied Liabilities or other liabilities of
Borrower, and exchange, enforce, waive and release any such security or
collateral; (iv) apply such security or collateral and direct the order or
manner of sale thereof as in its sole discretion it may determine; and (v)
settle, release, compromise, collect or otherwise liquidate the Guarantied
Liabilities and any security or collateral therefor in any manner, without
affecting or impairing the obligations of Guarantor hereunder. Bank shall
have the exclusive right to determine the time and manner of application of
any payments or credits, whether received from Borrower or any other source,
and such determination shall be binding on Guarantor. All such payments and
credits may be applied, reversed and reapplied, in whole or in part, to any of
the Guarantied Liabilities as Bank shall determine in its sole discretion
without affecting the validity or enforceability of this Guaranty.
Guarantor hereby assumes responsibility for keeping itself informed of the
financial condition of Borrower, and any and all endorsers and/or other
guarantors of any instrument or document evidencing all or any part of the
Guarantied Liabilities and of all other circumstances bearing upon the risk of
nonpayment of the Guarantied Liabilities or any part thereof that diligent
inquiry would reveal. Guarantor hereby agrees that Bank shall have no duty to
advise Guarantor of information known to Bank regarding such condition or any
such circumstances or to undertake any investigation not a part of its regular
business routine. If Bank, in its sole discretion, undertakes at any time or
from time to time to provide any such information to any Guarantor, Bank shall
be under no obligation to update any such information or to provide any such
information to Guarantor on any subsequent occasion.
Guarantor consents and agrees that Bank shall be under no obligation to
xxxxxxxx any assets in favor of Guarantor or against or in payment of any or
all of the Guarantied Liabilities. Guarantor further agrees that, to the
extent that Borrower makes a payment or payments to Bank, or Bank receives any
proceeds of collateral, which payment or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside and/or
required to be repaid to Borrower, its estate, trustee, receiver or any other
party, including, without limitation, Guarantor, under any bankruptcy law,
state or federal law, common law or equitable theory, then to the extent of
such payment or repayment, the Guarantied Liabilities or the part thereof
which has been paid, reduced or satisfied by such amount, and Guarantor's
obligations hereunder with respect to such portion of the Guarantied
Liabilities shall be reinstated and continued in full force and effect as of
the date such initial payment, reduction or satisfaction occurred.
Guarantor agrees that any and all claims of Guarantor against Borrower,
any endorser or any other guarantor of all or any part of the Guarantied
Liabilities, or against any of Borrower's properties, whether arising by
reason of any payment by Guarantor to Bank pursuant to the provisions hereof,
or otherwise, shall be subordinate and subject in right of payment to the
prior payment, in full, of all of the Guarantied Liabilities.
Bank may, without notice to anyone, sell or assign the Guarantied
Liabilities or any part thereof, or grant participations therein, and in any
such event each and every immediate or remote assignee or holder of, or
participant in, all or any of the Guarantied Liabilities shall have the right
to enforce this Guaranty, by suit or otherwise for the benefit of such
assignee, holder, or participant, as fully as if herein by name specifically
given such right, but Bank shall have an unimpaired right, prior and superior
to that of any such assignee, holder or participant, to enforce this Guaranty
for the benefit of Bank, as to any part of the Guarantied Liabilities retained
by Bank.
This Guaranty shall be binding upon Guarantor and upon the successors
(including without limitation, any receiver, trustee or debtor in possession
of or for Guarantor) of Guarantor and shall inure to the benefit of Bank and
its successors and assigns. Guarantor hereby represents and warrants that it
has all necessary corporate authority to execute and deliver this Guaranty and
to perform its obligations hereunder.
This Guaranty shall continue in full force and effect, and Bank shall be
entitled to make loans and advances and extend financial accommodations to
Borrower on the faith hereof until such time as Bank has, in writing, notified
Guarantor that all of the Guarantied Liabilities have been paid in full and
discharged and the Loan Agreement has been terminated.
Wherever possible, each provision of this Guaranty shall be interpreted in
such manner as to be effective and valid under applicable law, but if any
provision of this Guaranty shall be prohibited by or invalid under such law,
such provision shall be ineffective to the extent of such prohibition or
invalidity without invalidating the remainder of such provision or the
remaining provisions of this Guaranty.
THIS GUARANTY SHALL BE GOVERNED AND CONTROLLED BY THE INTERNAL LAWS OF THE
STATE OF ILLINOIS.
Guarantor irrevocably agrees that, subject to Bank's sole and absolute
election, ALL ACTIONS OR PROCEEDINGS IN ANY WAY, MANNER OR RESPECT, ARISING
OUT OF OR FROM OR RELATED TO THIS GUARANTY SHALL BE LITIGATED IN COURTS HAVING
SITUS WITHIN THE CITY OF CHICAGO, STATE OF ILLINOIS. GUARANTOR HEREBY
CONSENTS AND SUBMITS TO THE JURISDICTION OF ANY LOCAL, STATE OR FEDERAL COURTS
LOCATED WITHIN SAID CITY AND STATE. Guarantor hereby irrevocably appoints and
designates the Secretary of State of Illinois, whose address is 00 Xxxxx Xxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 (or any other person having and maintaining a
place of business in such state whom Guarantor may from time to time hereafter
designate upon ten (10) days written notice to Bank and who Bank has agreed in
its sole discretion in writing is satisfactory and who has executed an
agreement in form and substance satisfactory to Bank agreeing to act as such
attorney and agent), as Guarantor's true and lawful attorney and duly
authorized agent for acceptance of service of legal process. Guarantor agrees
that service of such process upon such person shall constitute personal
service of such process upon Guarantor. GUARANTOR HEREBY WAIVES ANY RIGHT IT
MAY HAVE TO TRANSFER OR CHANGE THE VENUE OF ANY LITIGATION BROUGHT AGAINST
GUARANTOR BY BANK IN ACCORDANCE WITH THIS PARAGRAPH.
GUARANTOR HEREBY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION OR
PROCEEDING WHICH PERTAINS DIRECTLY OR INDIRECTLY TO THIS GUARANTY.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, this Guaranty has been duly executed by the
undersigned as of the date first above written.
AMCON DISTRIBUTING COMPANY
By: Xxxxxxxx X. Xxxxx
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Title: President
