AMCON
Distributing Company
7405 Irvington Road
Omaha, Nebraska 68122
Chamberlin
Natural Foods, Inc.
430 North Orlando Avenue
Winter Park, Florida 32789
And
Health Food
Associates, Inc.
7807 East 51st Street
Tulsa, Oklahoma 74145
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Re
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Twelfth
Amendment to Amended and Restated Loan and Security Agreement (this
“Amendment”)
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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 Bank of America, N.A. , as
successor in interest to LaSalle Bank National Association ,
a national banking association (in its individual capacity, “
BofA ”), 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) Subsection 2(a)(ii) of the
Agreement is amended and restated in its entirety, to read as
follows:
(ii) Up to
eighty-five percent (85%) of the lower of cost or market value of
Eligible Cigarette Inventory or Twenty-Five Million and No/100
Dollars ($25,000,000.00), whichever is less; plus
(b) Subsection 13(d) of the
Agreement is amended and restated in full, to read as
follows:
(d)
Mergers, Sales, Acquisitions, Subsidiaries and Other
Transactions Outside the Ordinary Course of Business
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No Borrower
shall (i) enter into any merger or consolidation; (ii) change
its state of organization or enter into any transaction which has
the effect of changing its state of organization; (iii) sell,
lease or otherwise dispose of any of its assets other than in the
ordinary course of business, provided that AMCON may sell and
dispose of assets with a value of less than $250,000.00 in any
transaction, or series of related transactions, provided that the
proceeds thereof, net of reasonable out of pocket disposition
expenses, are applied to the Liabilities; (iv) purchase the
stock, other equity interests or all or a material portion of the
assets of any Person or division of such Person; or (v) enter
into any other transaction outside the ordinary course of such
Borrower’s busines
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