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 s
