EXHIBIT 10.17
GUARANTY FEE, REIMBURSEMENT AND INDEMNIFICATION AGREEMENT
THIS GUARANTY FEE, REIMBURSEMENT AND INDEMNIFICATION AGREEMENT (the
"Agreement") is entered into as of the 30th day of September, 2004, between
AMCON DISTRIBUTING COMPANY, a Delaware corporation ("AMCON"), and XXXXXXX X.
XXXXXX, an individual (the "Guarantor").
RECITALS
WHEREAS, AMCON is in need of a guaranty of specific financial accommodations
to be provided to AMCON by certain lenders under an Amended and Restated Loan
and Security Agreement dated as of September 30, 2004 among AMCON and certain
affiliates of AMCON (collectively, the "Borrowers"), LaSalle Bank National
Association, as agent for itself and other lenders from time to time party
thereto (the "Agent"), and the lenders from time to time party thereto (the
"Lenders") (as amended from time to time, the "Loan Agreement"), and has
requested that the Guarantor provide said guaranty;
WHEREAS, Guarantor is willing to provide said guaranty in exchange for a fee
and the pledge of the Pledged Shares (as defined in Section 4) to secure said
guaranty.
NOW, THEREFORE, in consideration of the foregoing and the covenants and
agreements set forth below, the parties agree as follows:
1. Agreement to Guaranty. Guarantor shall execute a guaranty form
provided by the Agent (the "Guaranty") pursuant to which Guarantor will
guarantee up to $10,000,000.00 of the obligations, liabilities and
indebtedness of Borrowers to Lenders incurred pursuant to the Loan Agreement.
2. Guaranty Fee. So long as the Guaranty is outstanding, AMCON will
pay and Guarantor will be entitled to receive a guaranty fee for providing
such Guaranty, which fee shall be equal to two percent (2%) per annum of the
then maximum amount of the Guaranty as determined in accordance with the
terms of the Guaranty, payable in advance on or before the tenth (10th) day
of the first month of each calendar quarter.
3. Reimbursement and Indemnification Obligation. Should Guarantor be
required to pay any funds to Agent or Lenders pursuant to the Guaranty, AMCON
agrees to reimburse and indemnify Guarantor for any such amounts paid, plus
costs and attorneys' fees relating thereto, within ten (10) days after
written demand for payment from Guarantor.
4. Collateral. AMCON's obligations to Guarantor under this Agreement
will be secured by the Pledged Shares (as defined in that certain Stock
Pledge Agreement dated as of September 30, 2004 between AMCON, as pledgor,
and Guarantor, as pledgee, as amended from time to time (the "Pledge
Agreement")).
5. Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the parties hereto and their respective heirs, legal
representatives, successors and permitted assigns.
6. Headings. The headings of the various sections of this Agreement
have been inserted for convenience of reference only and shall not be deemed
to be part of this Agreement.
7. Counterparts. This Agreement may be executed in one or more
counterparts and by the different parties hereto on separate counterparts,
each of which, when so executed, shall be deemed to be an original; such
counterparts, together, shall constitute one and the same Agreement.
8. Entire Agreement; Amendment. This Agreement and the Pledge
Agreement represent the entire agreement among the parties hereto with regard
to the subject matter set forth herein. Any oral or written agreement dated
prior to the date hereof regarding the subject matter contained herein shall
have no force and effect. This Agreement may only be amended by a writing
signed by AMCON and Guarantor.
9. Duration of Agreement. This Agreement shall continue in existence
and effect until the Guarantor no longer has any liability under the Guaranty
or is released from all such liability by Agent and Lenders.
10. Governing Law. This Agreement shall be construed in accordance
with the laws of the State of Nebraska and the obligations, rights and
remedies of the parties hereunder shall be determined in accordance with such
laws, without giving effect to principles of conflicts of law.
11. Collection Costs. AMCON agrees to pay all of Guarantor's expenses
of collection, enforcement or protection of Guarantor's rights and remedies
under this Agreement, including, without limitation, attorneys' fees and
expenses, court costs and other legal expenses. These expenses are due and
payable on demand by Guarantor, will accrue interest from the date of demand
until paid at the fixed rate of six percent (6%) per annum and will be
secured by the collateral described in the Pledge Agreement.
12. Notices. All demands, notices and communications hereunder shall
be in writing and shall be deemed to have been duly given if delivered
pursuant to the procedures set forth in the Pledge Agreement and to the
addresses set forth in the Pledge Agreement.
13. No Third Party Beneficiaries. No person or entity other than a
party to this Agreement, and the successors and assigns of the Guarantor,
shall have any rights with respect to the enforcement of any of the rights or
obligations hereunder.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
AMCON:
AMCON DISTRIBUTING COMPANY
By: /s/ Xxxxxxxx Xxxxx
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Name Xxxxxxxx Xxxxx
Title: President
GUARANTOR:
/s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
