EXHIBIT 10.5
SECURED PROMISSORY NOTE
AMCON DISTRIBUTING GOLD BANK APP# 131001007483
COMPANY 11301 NALL AVENUE LOAN # 131001007483
10228 "L" STREET LEAWOOD, KS 66211 DATE MAY 30, 2001
OMAHA, NE 68127 MATURITY DATE MAY 30, 2006
47-0702918 LOAN AMOUNT $ 6,960,000.00
RENEWAL OF
-------------
BORROWER'S NAME LENDER'S NAME
AND ADDRESS AND ADDRESS
"I" includes each "You" means the
borrower above, joint lender, its
and separately successors and
assigns
---------------------------------------------------------------------------
For value received I promise to pay to you, or your order, at your address
listed above the PRINCIPAL sum of SIX MILLION NINE HUNDRED SIXTY THOUSAND
AND NO/100 Dollars $ 6,960,000.00
/x/ Single Advance: I will receive all of this principal sum on May 30,
2001. No additional advances are contemplated under this note.
/ / Multiple Advance: The principal sum shown above is the maximum amount of
principal I can borrow under this note. On------------------------- I will
receive the amount of $------------------and future principal advances are
contemplated.
Conditions: The conditions for future advances are ---------------------
----------------------------------------------------------------------------
/ / Open End Credit: You and I agree that I may borrow up to the maximum
amount of principal more than one time. This feature is subject to
all other conditions and expires on-----------------------.
/ / Closed End Credit: You and I agree that I may borrow up to the
maximum only one time(and subject to all other conditions).
Interest: I agree to pay interest on the outstanding principal balance from
May 30, 2001 at the rate of 7.500% per year until May 30, 2006.
/ / Variable Rate: This rate may then change as stated below.
/ / Index Rate: The future rate will be --------------the following
index rate:---------------------------------------------------------
--------------------------------------------------------------------
/ / No Index: The future rate will not be subject to any internal or
external index. It will be entirely in your control.
/ / Frequency and Timing: The rate on this note may change as often as
-----------------------. A change in the interest rate will take
effect--------------------------.
/ / Limitations: During the term of this loan, the applicable annual
interest will not be more than ------% or less than ------%. The
rate may not change more than ------% each --------------.
Effect of variable rate: A change in the interest rate will have the
following effect on the payments.
/ / The amount of each scheduled payment will change.
/ / The amount of the final payment will change.
/ / -----------------------------------------------------------------
ACCRUAL METHOD: Interest will calculated on a ACTUAL/360 basis.
POST MATURITY RATE: I agree to pay interest on the unpaid balance of this
note owing after maturity, and until paid in full, as stated below.
/x/ on the same fixed or variable rate basis in effect before maturity
(as indicated above).
/ / at a rate equal to------------------------------------------------.
/x/ Late charge: If a payment is made more than 10 days after it is due, I
agree to pay a late charge of 5.000% of the unpaid amount due or $25.00,
whichever is greater.
/ / Additional charges: In addition to interest, I agree to pay the
following charges which / / are / / are not included in the principal
amount above: ------------------------------------------------------------.
Payments: I agree to pay this note as follows:
/x/ Installments: I agree to pay this note in (60) payments. The first
payment will be in the amount of $56,531.76 and will be due June 30, 2001.
A payment of $56,531.76 will be due ON THE 30TH OF EACH MONTH thereafter.
The final payment of the entire unpaid balance of principal and interest
will be due May 30, 2006.
ADDITIONAL TERMS:
This note is secured by:
1. A mortgage in the amount of $6,240,000.00 dated May 30, 2001.
2. A mortgage in the amount of $720,000.00 dated May 30, 2001.
/x/ SECURITY: This note is separately secured by (describe separate document
type and date):
Mortgage Dated May 30, 2001
(This section is for your internal use. Failure to list a separate
security document does not mean the agreement will not secure this
note.)
PURPOSE: The purpose of this loan is to Purchase Building.
Signatures: I AGREE TO THE TERMS OF THIS NOTE (INCLUDING THOSE ON PAGE 2).
I have received a copy on today's date.
Signature for Lender AMCON Distributing Company
/s/ Julie L. Hook /s/ Kathleen Evans
---------------------------------- ----------------------------------
Julie L. Hook, Vice President Kathleen Evans, President
---------------------------------------------------------------------------
Definitions: As used on Page 1, /x/ means the terms that apply to this loan.
"I", "me", or "my" means each Borrower who signs this note and each other
person or legal entity (including guarantors, endorsers, and sureties) who
agrees to pay this note (together referred to as "us"). "You" or "your"
means the Lender and its successors and assigns.
Applicable Law: The law of the state in which you are located will govern
this note. Any term of this note which is contrary to applicable law will
not be effective, unless the law permits you and me to agree to such a
variation. If any provision of this agreement cannot be enforced according
to its terms, this fact will not affect the enforceability of the remainder
of this agreement. No modification of this agreement may be made without
your express written consent. Time is of the essence in this agreement.
Payments: Each payment I make on this note will first reduce the amount I
owe you for charges which are neither interest nor principal. The remainder
of each payment will then reduce accrued unpaid interest, and then unpaid
principal. If you and I agree to a different application of payments, we
will describe our agreement on this note. I may prepay a part of, or the
entire balance of this loan without penalty, unless we specify to the
contrary on this note. Any partial prepayment will not excuse or reduce any
later scheduled payment until this note is paid in full (unless, when I make
the prepayment, you and I agree in writing to the contrary).
Interest: Interest accrues on the principal remaining unpaid from time to
time, until paid in full. If I receive the principal in more than one
advance, each advance will start to earn interest only when I receive the
advance. The interest rate in effect on this note at any given time will
apply to the entire principal advanced at that time. Notwithstanding
anything to the contrary, I do not agree to pay and you do not intend to
charge any rate of interest that is higher than the maximum rate of interest
you could charge under applicable law for the extension of credit that is
agreed to here (either before or after maturity). If any notice of interest
accrual is sent and is in error, we mutually agree to correct it, and if you
actually collect more interest than allowed by law and this agreement, you
agree to refund it to me.
Index Rate: The index will serve only as a device for setting the rate on
this note. You do not guarantee by selecting this index, or the margin,
that the rate on this note will be the same rate you charge on any other
loans or class of loans to me or other borrowers.
Accrual Method: The amount of interest that I will pay on this loan will be
calculated using the interest rate and accrual methods stated on page 1 of
this note. For the purpose of interest calculation, the accrual method will
determine the number of days in a "year". If no accrual method is stated,
then you may use any reasonable accrual method for calculating interest.
Post Maturity Rate: For purposes of deciding when the "Post Maturity Rate"
(shown on page 1) applies, the term "maturity" means the date of the last
scheduled payment indicated on page 1 of this note or the date you
accelerate payment on the note, whichever is earlier.
Single Advance Loans: If this is a single advance loan, you and I expect
that you will make only one advance of principal. However, you may add
other amounts to the principal if you make any payments described in the
"PAYMENTS BY LENDER" paragraph below.
Multiple Advance Loans: If this is a multiple advance loan, you and I expect
that you will make more than one advance of principal. If this is closed
and credit, repaying a part of the principal will not entitle me to
additional credit.
Payments by Lender: If you are authorized to pay, on my behalf, charges I am
obligated to pay (such as property insurance premiums), then you may treat
those payments made by you as advances and add them to the unpaid principal
under this note, or you may demand immediate payment of the charges.
Set-Off: I agree that you may set off any amount due and payable under this
note against any right I have to receive money from you.
"Right to receive money from you" means:
1. Any deposit account balance I have with you;
2. Any money owed to me on an item presented to you or in your
possession for collection of exchange; and
3. Any repurchase agreement or other nondeposit obligation.
"Any amount due and payable under this note" means the total amount of
which you are entitled to demand payment under the terms of this note at the
time you set off. This total includes any balance the due date for which
you properly accelerate under this note.
If my right to receive money from you is also owned by someone who has
not agreed to pay this note, your right of set-off will apply to my interest
in the obligation and to any other amounts I could withdraw on my sole
request or endorsement. Your right of set-off does not apply to an account
or other obligation where my rights are only as a representative. It also
does not apply to any Individual Retirement Account or other tax-deferred
retirement account.
You will not be liable for the dishonor of any check when the dishonor
occurs because you set off this debt against any of my accounts. I agree to
hold you harmless from any such claims arising as a result of your exercise
of your right of set-off.
Real Estate or Residence Security: If this note is secured by real estate or
a residence that is personal property, the existence of a default and your
remedies for such a default will be determined by applicable law, by the
terms of any separate instrument creating the security interest and, to the
extent not prohibited by law and not contrary to the terms of the separate
security instrument, by the "Default" and "Remedies" paragraphs herein.
Default: I will be in default if any one or more of the following occur: (1)
I fail to make a payment on time or in the amount due; (2) I fail to keep
the property insured, if required; (3) I fail to pay, or keep any promise,
on any debt or agreement I have with you; (4) any other creditor of mine
attempts to collect any debt I owe him through court proceedings; (5) I die,
am declared incompetent, make an assignment for the benefit of creditors, or
become insolvent (either because my liabilities exceed my assets or I am
unable to pay my debts as they become due; (6) I make any written statement
or provide any financial information that is materially untrue or inaccurate
at the time it was provided; (7) I do or fail to do something which causes
you to believe that you will have difficulty collecting the amount I owe
you; (8) any collateral securing this note is used in a manner or for a
purpose which threatens confiscation by a legal authority; (9) I change my
name or assume an additional name without first notifying you before making
such a change; (10) I fail to plant, cultivate, and harvest crops in due
season if I am a producer of crops; (11) any loan proceeds are used for a
purpose that will contribute to excessive erosion of highly erodible land or
to the conversion of wetlands to produce and agricultural commodity, as
further explained in 7 C.F.R. Part 1940, Subpart G, Exhibit M.
Remedies: If I am in default on this note you have, but are not limited to,
the following remedies:
1. You may demand immediate payment of all I owe you under this note
(principal, accrued unpaid interest, and other accrued charges).
2. You may set off this debt against any right I have to the payment of
money from you, subject to the terms of the "Set-Off" paragraph herein.
3. You may demand security, additional security, or additional parties
to be obligated to pay this note as a condition for not using any other
remedy.
4. You may refuse to make advances to me or allow purchases on credit
by me.
5. You may use any remedy you have under state or federal law.
By selecting any one or more of these remedies you do not give up your right
to later use of any other remedy. By waiving your right to declare an event
to be a default, you do not waive your right to later consider the event as
a default if it continues or happens again.
Collection Costs and Attorney's Fees: I agree to pay all costs of
collection, replevin or any other or similar type of cost if I am in
default. In addition, if you hire an attorney to collect this note, I also
agree to pay any fee you incur with such attorney plus court costs (except
where prohibited by law). To the extent permitted by the United States
Bankruptcy Code, I also agree to pay the reasonable attorney's fees and
costs you incur to collect this debt as awarded by any court exercising
jurisdiction under the Bankruptcy Code.
Waiver: I give up my rights to require you to do certain things. I will not
require you to:
1. Demand payment of amounts due (presentment);
2. Obtain official certification of nonpayment (protest); or
3. Give notice that amounts due have not been paid (notice of
dishonor).
I waive any defenses I have based on suretyship or impairment of collateral.
Obligations Independent: I understand that I must pay this note even if
someone else has also agreed to pay it (by, for example, signing this form
or separate guarantee or endorsement). You may sue me alone, or anyone else
who is obligated on this note. You may do so without any notice that it has
not been paid (notice of dishonor). You may without notice release any
party to this agreement without releasing any other party. If you give up
any of your rights, with or without notice, it will not affect my duty to
pay this note. Any extension of new credit to any of us, or renewal of this
note by all or less than all of us will not release me from my duty to pay
it. (Of course, you are entitled to only one payment in full). I agree
that you may at your option extend this note or the debt represented by this
note, or any portion of the note or debt, from time to time without limit or
notice and for any term without affecting my liability for payment of the
note. I will not assign my obligation under this agreement without your
prior written approval.
Credit Information: I agree and authorize you to obtain credit information
about me from time to time (for example, by requesting a credit report) and
to report to others your credit experience with me (such as a credit
reporting agency). I agree to provide you, upon request, any financial
statement or information you may deem necessary. I warrant that the
financial statements and information I provide to you are or will be
accurate, correct and complete in all material respects.
Notice: Unless otherwise required by law, any notice to me shall be given by
delivering it or by mailing it by first class mail addressed to me at my
last known address. My current address is on page 1. I agree to inform you
in writing of any change in my address. I will give any notice to you by
mailing it first class to your address stated on page 1 of this agreement,
or to any other address that you have designated.