EXHIBIT 10.20
AFTER RECORDING, RETURN TO:
Givens Pursley LLP
601 W. Bannock
Boise, ID 83702
Attn.: Angela K. Nelson
MODIFICATION AND EXTENSION OF
SECOND LIEN COMMERCIAL MORTGAGE,
ASSIGNMENT OF LEASES AND RENTS,
AND FIXTURE FILING
THIS MODIFICATION AND EXTENSION OF SECOND LIEN COMMERCIAL MORTGAGE,
ASSIGNMENT OF LEASES AND RENTS, AND FIXTURE FILING (herein "Amendment") is
made as of December 14, 2004, among Trinity Springs, Inc., a Delaware
Corporation, whose address is 1101 West River Street, Suite 370, Boise, Idaho
83702, for the benefit of AMCON Distributing Co., a Delaware corporation,
whose address is 7405 Irvington Road, Omaha, Nebraska 68164-7940 and Allen D.
Petersen, an individual whose address is Draupnir LLC, 515 N. State St.,
#2650, Chicago, IL 60610. All terms not defined herein shall have the
meanings ascribed to them in the Mortgage (hereinafter defined).
W I T N E S S E T H:
WHEREAS, Trinity Springs, Inc. heretofore executed and delivered that certain
SECOND LIEN COMMERCIAL MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, AND FIXTURE
FILING, dated June 17, 2004 and recorded on the 25th day of June, 2004, as
Instrument Nos. 357782 and 357783, records of Elmore County, State of Idaho
(hereinafter referred to as the "Mortgage"); and
WHEREAS, said Mortgage being made to secure a note in the principal sum of
ONE MILLION AND NO/100 DOLLARS ($1,000,000.00), with interest thereon, with a
final maturity date of July 1, 2005 (hereinafter referred to as the "Original
Note"), subsequent intercompany advances in an aggregate amount of ONE
MILLION EIGHTY SIX THOUSAND AND NO/100 DOLLARS ($1,086,000.00) from Borrower
to AMCON Distributing Co., and also such further sums as may be advanced or
loaned by AMCON Distributing Co. to Trinity Springs, Inc.; and
WHEREAS, Allen D. Petersen has loaned to Trinity Springs, Inc. a credit line
with a principal sum of up to ONE MILLION DOLLARS ($1,000,000.00), with
interest thereon, with a final maturity date of December 14, 2005, such loan
being evidenced by a note of even date herewith (the "New Note"); and
WHEREAS, AMCON Distributing Co. and Allen D. Petersen have agreed that the
Original Note and the New Note, and such future advances as shall be extended
to Trinity Springs, Inc. thereunder, shall be secured by the Mortgage as
amended hereby;
WHEREAS, the parties desire to modify and amend the Mortgage to secure the
New Note, and to provide for additional terms as hereinafter provided.
NOW, THEREFORE, in consideration of the premises, the promises and agreements
between the said parties hereinafter contained, and the mutual benefits
accruing to the undersigned parties hereunder, the parties hereto for
themselves and their respective successors and assigns do hereby agree as
follows:
1. The above recitals are incorporated herein by this reference as if
fully restated in the body of this Agreement.
2. In accordance with the terms of this Amendment, the parties hereby
agree that the Mortgage shall be amended and modified as follows:
a. The term "Borrower" as set forth in the Mortgage shall refer to
Trinity Springs, Inc., a Delaware Corporation, whose address is
1101 West River Street, Suite 370, Boise, Idaho 83702.
b. The term "Lender" as set forth in the Mortgage shall refer
collectively to AMCON Distributing Co. and Allen D. Petersen;
c. The Mortgage shall secure to Lender, in addition to those items
of Indebtedness set forth in the Mortgage (a) the repayment of
the indebtedness evidenced by the New Note; (b) payment of
intercompany advances in an aggregate amount of ONE MILLION
EIGHTY SIX THOUSAND AND NO/100 DOLLARS ($1,086,000.00); (c)
payment of any and all future advances made under the New Note,
and advances made under any subsequent debt arrangement between
Borrower and Allen D. Petersen (and all modifications,
extensions, renewals and/or replacements thereof); (d) the
payment of all other sums, with interest thereon, advanced in
to protect the security of the Mortgage as amended hereby or to
fulfill any of Borrower's obligations under the Mortgage as
amended hereby, or under the other Loan Documents (as defined
below); (e) the performance of the covenants and agreements of
Borrower contained in the Mortgage as amended hereby or in the
other Loan Documents; and (f) the repayment of all sums now or
hereafter owing to Lender by Borrower. The term "Indebtedness"
as set forth in the Mortgage shall refer collectively to the
Indebtedness set forth in the Mortgage and items (a) - (f) of
this subsection 2(c).
d. The term "Note" as referred to in the Mortgage shall refer
collectively to the Original Note and the New Note.
e. The term "Future Advances" as referred to in the Mortgage shall
refer collectively to any and all future advances made under
the Original Note and the New Note, and advances made under any
subsequent debt arrangement between Borrower and Lender (and
all modifications, extensions, renewals and/or replacements
thereof);
f. The term "Loan Documents" as set forth in the Mortgage shall
refer collectively to the Original Note, the New Note, the
Mortgage, this Amendment, and all other documents evidencing,
securing or guarantying the Indebtedness, as the same may be
modified or amended from time to time.
3. Except insofar as herein expressly changed, all terms, covenants and
provisions of the Original Note, the Mortgage and the obligations
evidenced and secured thereby shall remain in full force and effect
and are hereby expressly ratified and confirmed by the parties
hereto. This Amendment, together with all other Loan Documents,
supersedes all oral negotiations and prior and other writings with
respect to their subject matter and are intended by the parties as
the complete and exclusive statement of the terms agreed to by the
parties. If there is any conflict between the terms, conditions and
provisions of this Amendment and those of any other agreement or
instrument, including any of the other Loan Documents, the terms,
conditions and provisions of this Amendment shall prevail.
SIGNED, SEALED AND DELIVERED this 14th day of December, 2004.
BORROWER:
TRINITY SPRINGS, INC.,
a Delaware corporation,
By: /s/ William F. Wright
--------------------------
William F. Wright,
Chairman of the Board and CEO
STATE OF CALIFORNIA )
County of SAN DIEGO ) ss.
On this 14th day of December, in the year of 2004, before me, a Notary Public
in and for said State, personally appeared William F. Wright, known or
identified to me to be the Chairman of the Board of Trinity Springs, Inc.,
the Delaware corporation that executed the instrument or the person who
executed the instrument on behalf of said corporation, and acknowledged to me
that such corporation executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal
the day and year first above written.
/s/ Deanna Foral
------------------------
Notary Public for County of San Diego, CA
Residing at Del Mar, CA
My Commission expires October 2, 2005