EXHIBIT 10.11
TENTH AMENDMENT TO THE AMENDED AND RESTATED LOAN AND
SECURITY AGREEMENT
THIS TENTH AMENDMENT TO THE AMENDED AND RESTATED LOAN AND
SECURITY
AGREEMENT (the "Amendment") is made effective as of the 15th day
of
October, 2008, by and among LASALLE BANK NATIONAL ASSOCIATION (in
its
individual capacity, "LaSalle"), as agent (in such capacity as
agent,
"Agent") for itself and all other lenders from time to time a party
to
the Loan Agreement ("Lenders"), all other Lenders and AMCON
DISTRIBUTING COMPANY, a Delaware corporation, CHAMBERLIN
NATURAL
FOODS, INC., a Florida corporation, and HEALTH FOOD ASSOCIATES,
INC.,
an Oklahoma corporation, (collectively, "Borrower").
PRELIMINARY
STATEMENTS
(A) Borrower, Agent
and Lenders executed a certain Amended and
Restated Loan and Security Agreement dated September 30, 2004
(as
amended, restated, extended or otherwise modified from time to
time,
the "Loan Agreement") and various "Other Agreements" as defined
therein, in connection with certain loan facilities.
(B) Agent and Lenders
have requested and Borrowers have agreed to
amend the Loan Agreement on the terms and conditions set forth
herein.
NOW THEREFORE, in consideration of the foregoing and such other
consideration as the parties mutually agree, the parties hereto
agree
as follows:
AGREEMENT
1. PRELIMINARY
STATEMENTS. The
preliminary statements set forth
above are accurate, represent the intent of the parties hereto and
are
incorporated herein by reference. Unless otherwise defined in
this
Amendment, capitalized terms used herein will have the same meaning
in
this Amendment as set forth in the Loan Agreement.
2. SPECIFIC AMENDMENTS
TO LOAN AGREEMENT.
Borrower, Lenders and
Agent hereby agree that the Loan Agreement is hereby amended
and
modified as follows:
A. NEW DEFINITIONS.
The following
definitions are hereby added to
Section 1 of the Loan Agreement in alphabetical order:
"Dominion Account" shall have the meaning specified in subsection
8(a)
hereof.
"Systems Day One" shall mean the date upon which Agent's system
of
record for loans and deposits shall convert to the system of
record
for loans and deposits used by Bank of America, N.A."
B. REMOVED DEFINITION.
The defined term
"Lockbox Account" set forth
in Section 1 of the Loan Agreement is hereby deleted in its
entirety.
C. AMCON COLLECTIONS.
Subsection 8(a) of the
Loan Agreement is
hereby amended and restated in its entirety as follows:
"(a) With respect to
AMCON, Borrower shall direct all of its Account
Debtors to make all payments on the Accounts directly to a post
office
box (the "Lock Box") designated by, and under the exclusive
control
of, Agent, at a financial institution acceptable to Agent.
Borrower
has established an account (the "Dominion Account") in Agent's
name
with a financial institution acceptable to Agent, into which
all
payments received in the Lock Box shall be deposited, and into
which
Borrower will immediately deposit all payments received by Borrower
on
Accounts in the identical form in which such payments were
received,
whether by cash or check; provided that on or prior to Systems
Day
One, at the request of Agent, the Dominion Account shall be changed
to
Borrower's name for the benefit of Agent. If Borrower, any Affiliate
or Subsidiary, any shareholder, officer, director, employee or
agent
of Borrower or any Affiliate or Subsidiary, or any other Person
acting
for or in concert with Borrower shall receive any monies,
checks,
notes, drafts or other payments relating to or as Proceeds of
Accounts
or other Collateral, Borrower and each such Person shall receive
all
such items in trust for, and as the sole and exclusive property
of,
Agent and, immediately upon receipt thereof, shall remit the same
(or
cause the same to be remitted) in kind to the Dominion Account.
The
financial institution with which the Dominion Account is
established
shall acknowledge and agree, in a manner satisfactory to Agent,
that
the amounts on deposit in such Lock Box and Dominion Account are
the
sole and exclusive property of Agent, that such financial
institution
will follow the instructions of Agent with respect to disposition
of
funds in the Lock Box and Dominion Account without further
consent
from Borrower, that such financial institution has no right to
setoff
against the Lock Box or Dominion Account or against any other
account
maintained by such financial institution into which the contents
of
the Lock Box or Dominion Account are transferred, and that such
financial institution shall wire, or otherwise transfer in
immediately
available funds to Agent in a manner satisfactory to Agent,
funds
deposited in the Dominion Account on a daily basis as such funds
are
collected. Borrower
agrees that all payments made to such Dominion
Account or otherwise received by Agent, whether in respect of
the
Accounts or as Proceeds of other Collateral or otherwise (except
for
proceeds of Collateral which are required to be delivered to
the
holder of a Permitted Lien which is prior in right of payment),
will
be applied on account of the Liabilities in accordance with the
terms
of this Agreement.
Borrower agrees to pay all customary fees, costs
and expenses in connection with opening and maintaining the Lock
Box
and Dominion Account.
All of such fees, costs and expenses if not
paid by Borrower, may be paid by Agent and in such event all
amounts
paid by Agent shall constitute Liabilities hereunder, shall be
payable
to Agent by Borrower upon demand, and, until paid, shall bear
interest
at the highest rate then applicable to Loans hereunder.
All checks,
drafts, instruments and other items of payment or Proceeds of
Collateral shall be endorsed by Borrower to Agent, and, if that
endorsement of any such item shall not be made for any reason,
Agent
is hereby irrevocably authorized to endorse the same on
Borrower's
behalf. For the
purpose of this section, Borrower irrevocably hereby
makes, constitutes and appoints Agent (and all Persons designated
by
Agent for that purpose) as Borrower's true and lawful attorney
and
agent-in-fact (i) to endorse Borrower's name upon said items of
payment and/or Proceeds of Collateral and upon any Chattel
Paper,
Document, Instrument, invoice or similar document or agreement
relating to any Account of Borrower or Goods pertaining thereto;
(ii)
to take control in any manner of any item of payment or
Proceeds
thereof and (iii) to have access to any lock box or postal box
into
which any of Borrower's mail is deposited, and open and process
all
mail addressed to Borrower and deposited therein.
D. OTHER COLLECTIONS.
Subsection 8(b) of the
Loan Agreement is
hereby amended and restated in its entirety as follows:
"(b) With respect to each Borrower other than AMCON, until such
time
as Agent shall, in its sole discretion, after the occurrence of
an
Event of Default, notify such Borrowers that Agent will require
such
Borrowers to establish and maintain a Lock Box and Dominion
Account,
such Borrowers shall collect and enforce all of their Accounts.
All
costs of enforcement and collection of such Borrowers' Accounts
shall
be borne solely by each such Borrower, whether the same are
incurred
by Agent or by such Borrowers. Such Borrowers agree that,
with
respect to all of such Borrowers' Accounts, the collection and
enforcement of such Accounts by such Borrowers shall be as
Agent's
agent, and that all collections and proceeds thereof (and of all
other
Collateral, including, without limitation, Inventory) received by
such
Borrowers, Affiliate or any Subsidiary or any shareholder,
officer,
director, employee or agent of such Borrowers or any Affiliate
or
Subsidiary, or any other person acting for or in connection with
such
Borrowers shall be received in trust for Agent and shall be
promptly
turned over to Agent or another financial institution acceptable
to
Agent in the precise form in which received, either by mailing
the
same or delivering the same to Agent or another financial
institution
acceptable to Agent not
