EXHIBIT 10.20
AMENDED AND RESTATED
GUARANTY AND SURETYSHIP AGREEMENT
This Amended and Restated Guaranty and Suretyship Agreement
(this
"Agreement" or the "Guaranty") is made as of the 17th day of
June,
2004 and amended and restated as of the 30th day of September, 2007
by
AMCON Distributing Company, a Delaware corporation (the
"Guarantor"),
in favor of Crystal Paradise Holdings, Inc., an Idaho
corporation,
also known as Trinity Springs, Ltd. ("CPH").
RECITALS
A. Trinity Springs
Inc., a Delaware corporation and majority-owned
subsidiary of AMCON ("TSI"), purchased substantially all of the
assets
of CPH pursuant to the terms of that certain Asset Purchase
Agreement
dated April 24, 2004, and amended on June 17, 2004 (the "Asset
Purchase Agreement").
B. In connection with
the transactions contemplated by the Asset
Purchase Agreement, TSI issued to CPH (a) a Promissory Note in
the
original principal amount of FIVE HUNDRED THOUSAND DOLLARS AND
00/100
DOLLARS ($500,000.00) (the "Three Year Note"); (b) a Promissory
Note
in the original principal amount of TWO MILLION EIGHT HUNDRED
TWENTY-EIGHT THOUSAND FOUR HUNDRED FORTY AND 00/100 DOLLARS
($2,828,440.00) (the "Ten Year Note"); and (c) pursuant to
Section
11.1 of the Asset Purchase Agreement, certain royalty payment
obligations with respect to the sale of water after the date
hereof
(the "Water Royalty").
C. As a condition to
CPH's obligation to enter into the Asset
Purchase Agreement and perform its obligations thereunder,
Guarantor
entered into this Agreement to guaranty TSI's payment
obligations
under the Three Year Note, the Ten Year Note and the Water
Royalty,
subject to certain limitations set forth herein.
D. In order to settle
certain disputes and release each other from
claims and causes of action that arose between CPH, TSI, and
AMCON
after the transfer of assets pursuant to the Asset Purchase
Agreement,
the parties hereto have entered into that certain Mutual Release
and
Settlement Agreement dated September 30, 2007 (the "Settlement
Agreement").
E. As part of the
Settlement Agreement, CPH has cancelled the Three
Year Note, the Ten Year Note, the Asset Purchase Agreement and,
consequently, the Water Royalty in exchange for, among other
consideration, TSI issuing a new promissory note in the
principal
amount of FIVE MILLION AND NO/100 DOLLARS ($5,000,000.00) (the
"Note").
F. AMCON desires to
amend and restate this Guaranty to guarantee
TSI's payment obligations under the Note instead of the Three
Year
Note, Ten Year Note, and Water Royalty, subject to certain
limitations
set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, Guarantor hereby agrees as follows:
AGREEMENT
1. REPRESENTATIONS AND
WARRANTIES. Guarantor
hereby represents and
warrants to CPH as follows:
(a) The execution and
delivery by Guarantor of this Agreement and the
performance by Guarantor of its obligations hereunder do not and
will
not contravene or conflict with any law, regulation or rule,
any
license, agreement, or instrument to which Guarantor is a party or
by
which Guarantor or any of Guarantor's property may be bound or
affected, or any judgment, order or decree of any court of any
federal, state, or local commission, board, or other
administrative
agency by which Guarantor or any of Guarantor's property may be
bound
or affected.
(b) This Agreement is
the legal, valid, and binding obligation of
Guarantor, enforceable against Guarantor in accordance with its
terms.
2. GUARANTY. Guarantor
absolutely, irrevocably and unconditionally
guarantees the prompt payment when due of all amounts under the
Note,
in accordance with its terms, to CPH, including, without
limitation,
costs of collection, which shall include reasonable attorneys
fees
(collectively referred to herein as the "Obligations").
Notwithstanding anything to the contrary contained herein, to
satisfy
the Obligations when due, CPH shall be entitled to make a claim
against all or any portion of the assets of Guarantor. Guarantor
further agrees that:
(a) This Guaranty is in all respects continuing, absolute, and
unconditional.
(b) This Guaranty is a
guaranty of both performance and payment when
due, and not of collection.
(c) CPH may, from time to time, at CPH's sole discretion and
without
notice to Guarantor, take any