July 14, 2009
EXHIBIT 10.1
July 14, 2009
And
Xxxxxxxxxx Natural Foods, Inc.
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxx 00000
And
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxx 00000
And
Health Food Associates, Inc.
0000 Xxxx 00xx Xxxxxx
Xxxxx, Xxxxxxxx 00000
0000 Xxxx 00xx Xxxxxx
Xxxxx, Xxxxxxxx 00000
| Re: | Twelfth Amendment to Amended and Restated Loan and Security Agreement
(this “Amendment”) |
Ladies and Gentlemen:
AMCON Distributing Company, a Delaware corporation (“AMCON”), Xxxxxxxxxx Natural Foods, Inc.,
a Florida corporation (“Xxxxxxxxxx Natural”), and Health Food Associates, Inc., an Oklahoma
corporation (“Health Food”) (AMCON, Xxxxxxxxxx Natural, and Health Food are each referred to as a
“Borrower” and are collectively referred to as “Borrowers”) and Bank of America, N.A., as successor
in interest to LaSalle Bank National Association, a national banking association (in its individual
capacity, “BofA”), as agent (in such capacity as agent, “Agent”) for itself, M&I Xxxxxxxx & Xxxxxx
Bank (successor by merger to Gold 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 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) Subsection 2(a)(ii) of the Agreement is amended and restated in its entirety, to
read as follows:
(ii) Up to eighty-five percent (85%) of the lower of cost or market
value of Eligible Cigarette Inventory or Twenty-Five Million and
No/100 Dollars ($25,000,000.00), whichever is less; plus
(b) Subsection 13(d) of the Agreement is amended and restated in full, to read 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 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 2007 Omnibus Incentive Plan. Notwithstanding anything in
this Agreement to the contrary, no Borrower shall redeem, retire,
purchase or otherwise acquire any shares of any class or series of
its stock or any other equity interest (including, without
limitation, any shares of AMCON’s Series A Convertible Preferred
Stock or Series B Convertible Preferred Stock); provided,
however, that AMCON may (i) 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, (ii) purchase shares of its common stock only so long as (I)
no Event of Default is in existence at the time of, or would occur
after giving effect to, any such purchase, and (II) Borrowers shall
have Average Excess Availability of not less than Ten Million Dollars
($10,000,000.00) for the thirty (30) day period immediately prior to
such purchase and after giving effect to any such purchase and (iii)
redeem shares of AMCON’s Series A and Series B Convertible Preferred
Stock only so long as (I) no Event of Default is in existence at the
time of, or would occur after giving effect to, any such redemption,
and (II) Borrowers shall have Average Excess Availability of not
less than Five Million Dollars ($5,000,000.00) for the thirty (30)
day period immediately prior to such redemption and after giving
effect to any such redemption. No Borrower shall form any
Subsidiaries or enter into any joint ventures or partnerships with
any other Person. For purposes herein, “Average Excess
Availability” shall be determined by dividing (i) the total of each
day’s Excess Availability for such thirty (30) day period by (ii)
thirty (30).
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(c) Subsection 15(m) is hereby amended and restated to read as follows:
(m) Change of Control.
The failure of AMCON to own and have voting control of at least one
hundred percent (100%) of the issued and outstanding voting equity
interest of Xxxxxxxxxx Natural and Health Food.
2. This Amendment shall not become effective until Agent shall have received this Amendment,
duly executed by the parties hereto.
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. In addition to the foregoing, the Borrower agrees to pay
to the Agent for the benefit of the Lenders an amendment fee equal to $50,000 which shall be fully
earned and non-refundable as of the date hereof and be distributed to the Lenders in accordance
with their Pro Rata Share of the loan commitments.
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. Delivery of
an executed counterpart of this Amendment by facsimile or other electronic means shall be equally
as effective as delivery of a manually executed counterpart of this Amendment. Any party
delivering an executed counterpart of this Amendment by facsimile or other electronic means also shall deliver a manually executed counterpart of this Amendment but the failure to deliver a
manually executed counterpart shall not affect the validity, enforceability, and binding effect of
this Amendment.
-3-
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.
[Signatures appear on following pages]
-4-
(Signature Page to Twelfth Amendment to
Amended and Restated Loan and Security Agreement)
Amended and Restated Loan and Security Agreement)
| BANK OF AMERICA, N.A., a national banking association, as Agent and a Lender |
||||
| By: | /s/ Xxxxx Xxxxxxx | |||
| Title: VP | ||||
| M&I XXXXXXXX & ILSLEY BANK, as a Lender |
||||
| By: | /s/ Xxxxxxx Xxxxx | |||
| Title: VP | ||||
| By: | /s/ Xxx Xxxxxx | |||
| Title: AVP | ||||
| ACKNOWLEDGED AND AGREED TO this 14th day of July, 2009: AMCON DISTRIBUTING COMPANY |
||||
By:
|
/s/ Xxxxxx X. Xxxxxxx | |||
| Title: VP & CFO | ||||
| XXXXXXXXXX NATURAL FOODS, INC. | ||||
By:
|
/s/ Xxxxxxxx Xxxx | |||
| Title: VP | ||||
HEALTH FOOD ASSOCIATES, INC.
|
||||
By:
|
/s/ Xxxxxxxx Xxxx | |||
| Title: VP | ||||
