EXHIBIT 10.6
July 17, 2008
AMCON Distributing Company
7405 Irvington Road
Omaha, Nebraska 68122
And
Chamberlin Natural Foods, Inc.
430 North Orlando Avenue
Winter Park, Florida 32789
And
Health Food Associates, Inc.
7807 East 51st Street
Tulsa, Oklahoma 74145
RE: NINTH AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY
AGREEMENT (THIS "AMENDMENT")
Ladies and Gentlemen:
AMCON Distributing Company, a Delaware corporation ("AMCON"),
Chamberlin Natural Foods, Inc., a Florida corporation ("Chamberlin
Natural"), and Health Food Associates, Inc., an Oklahoma corporation
("Health Food") (AMCON, Chamberlin Natural, and Health Food are each
referred to as a "Borrower" and are collectively referred to as
"Borrowers") and LaSalle Bank National Association, a national banking
association (in its individual capacity, "LaSalle"), as agent (in such
capacity as agent, "Agent") for itself, M&I Marshall & Ilsley 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) The definition of the term "Maximum Loan Limit" appearing in
Section 1.1 of the Agreement is hereby amended and restated to read as
follows:
"Maximum Loan Limit" shall mean Sixty Million Four Hundred Fourteen
Thousand Nine Hundred Thirty Three and 48/100 Dollars
($60,414,933.48).
(b) The definition of the terms "Confectionary and Tobacco Limit",
"Eligible Confectionary Goods" and "Eligible Tobacco Products" are
hereby added to Section 1 of the Agreement to read as follows:
"Confectionary and Tobacco Limit" shall mean Five Million and No/100
Dollars ($5,000,000.00).
"Confectionary and Tobacco Advance Limit" shall mean the lesser of (x)
up to one hundred percent (100%) of the lesser of cost or market value
of Eligible Tobacco Products (inclusive of all excise stamps), plus
eighty-five percent (85%) of the lesser of cost or market value of
Eligible Confectionary Goods and (y) the Confectionary and Tobacco
Limit.
"Eligible Confectionary Goods" shall mean Inventory of AMCON
consisting of confectionary goods which are acceptable to Agent in its
sole discretion for lending purposes and otherwise constitute Eligible
Inventory.
"Eligible Tobacco Products" shall mean Inventory of AMCON consisting
of tobacco products such as Cigarette Inventory, cigars, chewing
tobacco and other tobacco products which are acceptable to Agent in
its sole discretion for lending purposes and otherwise constitute
Eligible Inventory.
(c) The following is hereby appended to the end of Section 2(a) of
the Agreement to read in its entirety as follows:
Notwithstanding the forgoing, so long as no Event of Default exists or
would arise therefrom, the Borrowers may from time to time request
that the Lenders provide Revolving Loans in excess of the Maximum
Revolving Loan Limit in an amount not to exceed the Confectionary and
Tobacco Advance Limit (such advance being referred to herein as the
"Confectionary and Tobacco Accordian"). The Confectionary and Tobacco
Accordian shall be made, in whole or in part, at the sole discretion
of the Agent, by each Lender according to its Pro Rata Share;
provided, however, that no Lender shall be obligated to provide
Confectionary and Tobacco Accordian advances. The Confectionary and
Tobacco Accordian shall not be effective unless and until each of the
following conditions have been satisfied:
(i) Each advance pursuant to the Confectionary and Tobacco
Accordian shall be subject to the satisfactory review and approval by
Agent in its sole discretion;
(ii) Each advance pursuant to the Confectionary and Tobacco
Accordian shall be utilized for purchases of inventory which are
outside the ordinary course of Borrowers' business to take advantage
of favorable vendor terms and pricing variances;
(iii) Each advance pursuant to the Confectionary and Tobacco
Accordian shall bear interest at the Prime Rate plus one-quarter of
one percent (0.25%) until repaid;
(iv) Each advance pursuant to the Confectionary and Tobacco
Accordian shall be due and payable within 45 days of the date of each
such advance; and
(v) The Borrowers shall deliver such other instruments, documents
and agreements as the Agent may request in order to effectuate the
Confectionary and Tobacco Accordian.
The Agreement shall be deemed amended, without further action, to the
extent necessary to effectuate the Confectionary and Tobacco Accordian
as contemplated hereby.
(d) Section 10 of the Agreement is amended and restated in its
entirety, to read as follows:
10. TERMINATION; AUTOMATIC RENEWAL.
THIS AGREEMENT SHALL BE IN EFFECT FROM THE DATE HEREOF UNTIL JUNE 30,
2011 (THE "ORIGINAL TERM") AND SHALL AUTOMATICALLY RENEW ITSELF FROM
YEAR TO YEAR THEREAFTER (EACH SUCH ONE-YEAR RENEWAL BEING REFERRED TO
HEREIN AS A "RENEWAL TERM") UNLESS (A) THE DUE DATE OF THE
LIABILITIES IS ACCELERATED PURSUANT TO SECTION 16 HEREOF; OR (B) A
BORROWER OR ANY LENDER ELECTS TO TERMINATE THIS AGREEMENT AT THE END
OF THE ORIGINAL TERM OR AT THE END OF ANY RENEWAL TERM BY GIVING THE
OTHER PARTIES HERETO WRITTEN NOTICE OF SUCH ELECTION AT LEAST NINETY
(90) DAYS PRIOR TO THE END OF THE ORIGINAL TERM OR THE THEN CURRENT
RENEWAL TERM. If one or more of the events specified in clauses (A)
and (B) occurs, then (i) Agent and Lenders shall not make any
additional Loans on or after the date identified as the date on which
the Liabilities are to be repaid; and (ii) this Agreement shall
terminate on the date thereafter that the Liabilities are paid in
full. At such time as Borrowers have repaid all of the Liabilities
and this Agreement has terminated, each Borrower shall deliver to
Agent and Lenders a release, in form and substance satisfactory to
Agent, of all obligations and liabilities of Agent and its Lenders and
their officers, directors, employees, agents, parents, subsidiaries
and affiliates to such Borrower, and if such Borrower is obtaining new
financing from another lender, such Borrower shall deliver such
lender's indemnification of Agent and Lenders, in form and substance
satisfactory to Agent, for checks which Agent has credited to such
Borrower's account, but which subsequently are dishonored for any
reason or for automatic clearinghouse or wire transfers not yet posted
to such Borrower's account. If, during the term of this Agreement,
Borrowers prepay all of the Liabilities and this Agreement is
terminated, Borrowers jointly and severally agree to pay to Agent, for
the benefit of the Lenders, as a prepayment fee, in addition to the
payment of all other Liabilities, an amount equal to (i) one percent
(1%) of the Maximum Loan Limit if such prepayment occurs on or before
June 30, 2009 and (ii) one-half of one percent (1/2%) of the Maximum
Loan Limit if such prepayment occurs subsequent to June 30, 2009 but
on or before June 30, 2010. Notwithstanding the foregoing, no
prepayment fee shall be required in the event that such prepayment
occurs after June 30, 2010.
(e) Section 12(d) is hereby amended by adding the following sentence
to the end of such Section:
Notwithstanding the foregoing, provided no Event of Default has
occurred, the Agent shall be limited to two (2) inspections per
calendar year.
(f) Agent and the Lenders hereby agree that effective as of the date
hereof, Borrowers ability to request that Revolving Loans be made as
LIBOR Rate Loans is hereby reinstated and the provisions regarding
LIBOR Rate Loans and the procedures regarding the borrowing thereof
which were deleted from the Loan Agreement pursuant to that certain
Fifth Amendment to Amended and Restated Loan and Security Agreement
dated as of February 9, 2006 among the Borrowers, Agent and the
Lenders are hereby reinstated in the Loan Agreement.
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.
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.
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.
LASALLE BANK NATIONAL ASSOCIATION, a national banking association, as
Agent and a Lender
By: /s/ Kevin Costello
Title: Senior Vice President
M&I MARSHALL & ILSLEY BANK, as a Lender
By: /s/ Sam Pepper
Title: Executive Vice President
M&I MARSHALL & ILSLEY BANK, as a Lender
By: /s/ Aaron Wiechman
Title: Officer
ACKNOWLEDGED AND AGREED TO this 17th day of July, 2008:
AMCON DISTRIBUTING COMPANY
By: /s/ Andrew C. Plummer
Title: Vice President and Chief Financial Officer
CHAMBERLIN NATURAL FOODS, INC.
By: /s/ Clifford Ginn
Title: Vice President
HEALTH FOOD ASSOCIATES, INC.
By: /s/ Clifford Ginn
Title: Vice President