EXHIBIT 10.9
December 28, 2006
AMCON Distributing Company
7405 Irvington Road
Omaha, Nebraska 68122
And
Chamberlin Natural Foods, Inc.
430 North Orlando Avenue
Winter Park, Florida 32789
And
Hawaiian Natural Water Company, Inc.
98-746 Kuahao Place
Pearl City, Hawaii 96782
And
Health Food Associates, Inc.
7807 East 51st Street
Tulsa, Oklahoma 74145
And
Trinity Springs, Inc.
1101 West River Street
Suite 370
Boise, Idaho 83702
RE: EIGHTH AMENDMENT
AND WAIVER 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"), Hawaiian Natural Water Company, Inc., a Delaware
corporation, ("Hawaiian Natural"), Health Food Associates, Inc.,
an
Oklahoma corporation, ("Health Food"), and Trinity Springs, Inc.,
a
Delaware corporation, ("Trinity Springs"), (AMCON, Chamberlin
Natural,
Hawaiian Natural, Health Food, and Trinity Springs 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 may 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 definitions of
"Beverage Accounts Sublimit", "Beverage
Inventory Sublimit" and "Beverage Subsidiary" as set forth in
Section
1 of the Agreement are amended and restated in their entirety, to
read
as follows:
"Beverage Accounts
Sublimit" shall mean Two Hundred Thousand and
No/100 Dollars ($200,000.00), as such amount is reduced from time
to
time pursuant to subsection 2(d)(iv) hereof.
"Beverage Inventory
Sublimit" shall mean Two Hundred Thousand and
No/100 Dollars ($200,000.00), as such amount is reduced from time
to
time pursuant to subsection 2(d)(iv) hereof.
"Beverage Subsidiary"
shall mean Trinity.
(b) Section 1 of the
Agreement is amended by adding thereto the
following definitions of "Debt Service Coverage Ratio",
"Prepayment
Loan Limit" and "Term B Loan Maturity Date" in alphabetical order:
"Debt Service Coverage
Ratio" shall mean, with respect to any
period, the ratio of (a) the sum for such period of (i) EBITDA (on
a
consolidated basis for all Borrowers), plus (ii) cash proceeds
received by the Borrowers pursuant to a sale of substantially all
of
the assets of Hawaiian Natural but not to exceed $2,454,000.00,
plus
(iii) cash proceeds received by the Borrowers pursuant to a sale
of
substantially all of the assets or equity interests of Trinity, to
(b)
the sum for such period of (i) cash interest paid by Borrowers,
plus
(ii) scheduled payments of Borrowers' current principal maturities
of
long term debt and capitalized leases, plus (iii) Capital
Expenditures
paid in cash, plus (iv) income and franchise taxes paid in cash by
the
Borrowers, plus (v) any cash dividends or cash distributions made
by
AMCON. Nothing in this
definition shall be construed to constitute
Agent's or any Lender's consent to any transaction that is not
permitted by other provisions of this Agreement or the Other
Agreements.
"Prepayment Loan
Limit" shall mean Fifty-Five Million and No/100
Dollars ($55,000,000.00).
"Term Loan B Maturity
Date" shall mean March 30, 2008.
(c) The first sentence
of Subsection 2(a) of the Agreement is amended
and restated in its entirety, to read as follows:
Subject to the terms
and conditions of this Agreement and the Other
Agreements, during the Original Term and any Renewal Term, each
Lender, severally and not jointly, agrees absent the occurrence of
an
Event of Default, to make its Pro Rata Share of revolving loans
and
advances (the "Revolving Loans") requested by Borrower
Representative
on behalf of each Borrower up to such Lender's Revolving Loan
Commitment so long as after giving effect to such Revolving Loans,
the
sum of the aggregate unpaid principal balance of the Revolving
Loans
and the Letter of Credit Obligations does not exceed an amount up
to
the sum of the following sublimits (the "Revolving Loan
Limit"):
(i) Up to eighty-five
percent (85%) of the face amount (less
maximum discounts, credits and allowances which may be taken by
or
granted to Account Debtors in connection therewith in the
ordinary
course of AMCON's
business) of AMCON's Eligible Accounts or
Fifty-Five Million and No/100 Dollars ($55,000,000.00), whichever
is
less; plus
(ii) Up to eighty-five percent
(85%) of the lower of cost or
market value of
Eligible Cigarette Inventory or Twenty Million and
No/100 Dollars ($20,000,000.00), whichever is less; plus
(iii) Up to seventy percent (70%) of the
lower of cost or market
value of AMCON's Eligible Inventory (consisting solely of
AMCON's
Eligible Inventory other than Eligible Cigarette Inventory set
forth
in clause (ii) above) or Fifteen Million and No/100 Dollars
($15,000,000.00), whichever is less; plus
(iv) Up to sixty percent (60%) of
the lower of cost or market
value of the Retail Subsidiaries' Eligible Inventory or the
Retai
