EXHIBIT 10.13
ISDA /R/
International Swap Dealers Association, Inc.
MASTER AGREEMENT
dated as of MAY 12, 2003
LASALLE BANK NATIONAL ASSOCIATION AND AMCON DISTRIBUTING COMPANY
have entered and/or anticipate entering into one or more transactions
(each a "Transaction") that are or will be governed by this Master
Agreement, which includes the schedule (the "Schedule"), and the
documents and other confirming evidence (each a "Confirmation")
exchanged between the parties confirming those Transactions.
Accordingly, the parties agree as follows:
1. Interpretation
(a) Definitions. The terms defined in Section 12 and in the Schedule
will have the meanings therein specified for the purpose of this
Master Agreement.
(b) Inconsistency. In the event of any inconsistency between the
provisions of the Schedule and the other provisions of this Master
Agreement, the Schedule will prevail. In the event of any
inconsistency between the provisions of any Confirmation and this
Master Agreement (including the Schedule), such Confirmation will
prevail for the purpose of the relevant Transaction.
(c) Single Agreement. All Transactions are entered into in reliance
on the fact that this Master Agreement and all Confirmations form a
single agreement between the parties (collectively referred to as
this "Agreement"), and the parties would not otherwise enter into any
Transactions.
2. Obligations
(a) General Conditions.
(i) Each party will make each payment or delivery specified in
each Confirmation to be made by it, subject to the other provisions of
this Agreement.
(ii) Payments under this Agreement will be made on the due date
for value on that date in the place of the account specified in the
relevant Confirmation or otherwise pursuant to this Agreement, in
freely transferable funds and in the manner customary for payments in
the required currency. Where settlement is by delivery (that is, other
than by payment), such delivery will be made for receipt on
the due date in the manner customary for the relevant obligation
unless otherwise specified in the relevant Confirmation or elsewhere
in this Agreement.
(iii) Each obligation of each party under Section 2(a)(i) is
subject to (1) the condition precedent that no Event of Default or
Potential Event of Default with respect to the other party has
occurred and is continuing, (2) the condition precedent that no Early
Termination Date in respect of the relevant Transaction has occurred
or been effectively designated and (3) each other applicable
condition precedent specified in this Agreement.
(b) Change of Account. Either party may change its account for
receiving a payment or delivery by giving notice to the other party at
least five Local Business Days prior to the scheduled date for the
payment or delivery to which such change applies unless such other
party gives timely notice of a reasonable objection
to such change.
(c) Netting. If on any date amounts would otherwise be payable:
(i) in the same currency; and
(ii) in respect of the same Transaction,
by each party to the other, then, on such date, each party's
obligation to make payment of any such amount will be automatically
satisfied and discharged and, if the aggregate amount that would
otherwise have been payable by one party exceeds the aggregate amount
that would otherwise have been payable by the other party, replaced by
an obligation upon the party by whom the larger aggregate amount would
have been payable to pay to the other party the excess of the larger
aggregate amount over the smaller aggregate amount. The parties may
elect in respect of two or more Transactions that a net amount will be
determined in respect of all amounts payable on the same date in the
same currency in respect of such Transactions, regardless of
whether such amounts are payable in respect of the same Transaction.
The election may be made in the Schedule or a Confirmation by
specifying that subparagraph (ii) above will not apply to the
Transactions identified as being subject to the election, together
with the starting date (in which case subparagraph (ii)
above will not, or will cease to, apply to such Transactions from such
date). This election may be made separately for different groups of
Transactions and will apply separately to each pairing of branches or
offices through which the parties make and receive payments or
deliveries.
(d) Default Interest; Other Amounts. Prior to the occurrence or
effective designation of an Early Termination Date in respect of the
relevant Transaction, a party that defaults in the performance of any
payment obligation will, to the extent permitted by law and subject to
Section 6(c), be required to pay interest (before as well as after
judgment) on the overdue amount to the other party on demand in the
same currency as such overdue amount, for the period from (and
including) the original due date for payment to (but
excluding) the date of actual payment, at the Default Rate. Such
interest will be calculated on the basis of daily compounding and the
actual number of days elapsed. If, prior to the occurrence or
effective designation of an Early Termination Date in respect of the
relevant Transaction, a party defaults in the performance of
any obligation required to be settled by delivery, it will compensate
the other party on demand if and to the extent provided for in the
relevant Confirmation or elsewhere in this Agreement.
3. Representations
Each party represents to the other party (which representations will
be deemed to be repeated by each party on each date on which a
Transaction is entered into) that:
(a) Basic Representations.
(i) Status. It is duly organised and validly existing under the
laws of the jurisdiction of its organisation or incorporation and, if
relevant under such laws, in good standing;
(ii) Powers. It has the power to execute this Agreement and any
other documentation relating to this Agreement to which it is a party,
to deliver this Agreement and any other documentation relating to this
Agreement that it is required by this Agreement to deliver and to
perform its obligations under this Agreement and any obligations it
has under any Credit Support Document to which it is a party and has
taken all necessary action to authorise such execution, delivery and
performance;
(iii) No Violation or Conflict. Such execution, delivery and
performance do not violate or conflict with any law applicable to it,
any provision of its constitutional documents, any order or judgment
of any court or other agency of government applicable to it or any of
its assets or any contractual restriction binding on or affecting it
or any of its assets;
(iv) Consents. All governmental and other consents that are
required to have been obtained by it with respect to this Agreement or
any Credit Support Document to which it is a party have been obtained
and are in full force and effect and all conditions of any such
consents have been complied with; and
(v) Obligations Binding. Its obligations under this Agreement
and any Credit Support Document to which it is a party constitute its
legal, valid and binding obligations, enforceable in accordance
with their respective terms (subject to applicable bankruptcy,
reorganisation, insolvency, moratorium or similar laws affecting
creditors' rights generally and subject, as to enforceability, to
equitable principles of general application (regardless of whether
enforcement is sought in a proceeding in equity or at law)).
(b) Absence of Certain Events. No Event of Default or Potential Event
of Default or, to its knowledge, Termination Event with respect to it
has occurred and is continuing and no such event or circumstance would
occur as a result of its entering into or performing its obligations
under this Agreement or any Credit Support Document to which it is a
party.
(c) Absence of Litigation. There is not pending or, to its knowledge,
threatened against it or any of its Affiliates any action, suit or
proceeding at law or in equity or before any court, tribunal,
governmental body, agency or official or any arbitrator that is likely
to affect the legality, validity or enforceability against it of
this Agreement or any Credit Support Document to which it is a party
or its ability to perform its obligations under this Agreement or such
Credit Support Document.
(d) Accuracy of Specified information. All applicable information
that is furnished in writing by or on behalf of it to the other party
and is identified for the purpose of this Section 3(d) in the Schedule
is, as of the date of the information, true, accurate and complete in
every material respect.
4. Agreements
Each party agrees with the other that, so long as either party has or
may have any obligation under this Agreement or under any Credit
Support Document to which it is a party:
(a) Furnish Specified Information. It will deliver to the other party
any forms, documents or certificates specified in the Schedule or any
Confirmation by the date specified in the Schedule or such
Confirmation or, if none is specified, as soon as reasonably
practicable.
(b) Maintain Authorisations. It will use all reasonable efforts to
maintain in full force and effect all consents of any governmental or
other authority that are required to be obtained by it with respect to
this Agreement or any Credit Support Document to which it is a party
and will use all reasonable efforts to obtain any that may become
necessary in the future.
(c) Comply with Laws. It will comply in all material respects with
all applicable laws and orders to which it may be subject if failure
so to comply would materially impair its ability to perform its
obligations under this Agreement or any Credit Support Document to
which it is a party.
5. Events of Default and Termination Events
(a) Events of Default. The occurrence at any time with respect to a
party or, if applicable, any Credit Support Provider of such party or
any Specified Entity of such party of any of the following events
constitutes an event of default (an "Event of Default") with respect
to such party:
(i) Failure to Pay or Deliver. Failure by the party to make,
when due, any payment under this Agreement or delivery under Section
2(a)(i) or 2(d) required to be made by it if such failure is not
remedied on or before the third Local Business Day after notice of
such failure is given to the party;
(ii) Breach of Agreement. Failure by the party to comply with or
perform any agreement or obligation (other than an obligation to make
any payment under this Agreement or delivery under Section 2(a)(i) or
2(d) or to give notice of a Termination Event) to be complied with or
performed by the party in accordance with this Agreement if such
failure is not remedied on or before the thirtieth day after notice of
such failure is given to the party;
(iii) Credit Support Default.
(1) Failure by the party or any Credit Support Provider of
such party to comply with or perform any agreement or obligation to be
complied with or performed by it in accordance with any Credit Support
Document if such failure is continuing after any applicable grace
period has elapsed;
(2) the expiration or termination of such Credit Support
Document or the failing or ceasing of such Credit Support Document to
be in full force and effect for the purpose of this Agreement
(in either case other than in accordance with its terms) prior to the
satisfaction of all obligations of such party under each Transaction
to which such Credit Support Document relates without the written
consent of the other party; or
(3) the party or such Credit Support Provider disaffirms,
disclaims, repudiates or rejects, in whole or in part, or challenges
the validity of, such Credit Support Document;
(iv) Misrepresentation. A representation made or repeated or
deemed to have been made or repeated by the party or any Credit
Support Provider of such party in this Agreement or any Credit
Support Document proves to have been incorrect or misleading in any
material respect when made or repeated or deemed to have been made or
repeated;
(v) Default under Specified Transaction. The party, any Credit
Support Provider of such party or any applicable Specified Entity of
such party (1) defaults under a Specified Transaction and, after
giving effect to any applicable notice requirement or grace period,
there occurs a liquidation of, an acceleration of obligations under,
or an early termination of, that Specified Transaction, (2) defaults,
after giving effect to any applicable notice requirement or grace
period, in making any payment or delivery due on the last payment,
delivery or exchange date of, or any payment on early termination
of, a Specified Transaction (or such default continues for at least
three Local Business Days if there is no applicable notice requirement
or grace period) or (3) disaffirms, disclaims, repudiates or
rejects, in whole or in part, a Specified Transaction (or such action
is taken by any person or entity appointed or empowered to operate it
or act on its behalf);
(vi) Cross Default. If "Cross Default" is specified in the
Schedule as applying to the party, the occurrence or existence of (1)
a default, event of default or other similar condition or event
(however described) in respect of such party, any Credit Support
Provider of such party or any applicable Specified Entity of such
party under one or more agreements or instruments relating to
Specified Indebtedness of any of them (individually or collectively)
in an aggregate amount of not less than the applicable Threshold
Amount (as specified in the Schedule) which has resulted in such
Specified Indebtedness becoming, or becoming capable at such time of
being declared, due and payable under such agreements or instruments,
before it would otherwise have been due and payable or (2) a default
by such party, such Credit Support Provider or such Specified Entity
(individually or collectively) in making one or more payments on the
due date thereof in an aggregate amount of not less than the
applicable Threshold Amount under such agreements or instruments
(after giving effect to any applicable notice requirement or grace
period);
(vii) Bankruptcy. The party, any Credit Support Provider of such
party or any applicable Specified Entity of such party:
(1) is dissolved (other than pursuant to a consolidation,
amalgamation or merger);
(2) becomes insolvent or is unable to pay its debts or fails
or admits in writing its inability generally to pay its debts as they
become due;
(3) makes a general assignment, arrangement or composition
with or for the benefit of its creditors;
(4) institutes or has instituted against it a proceeding
seeking a judgment of insolvency or bankruptcy or any other relief
under any bankruptcy or insolvency law or other similar law affecting
creditors' rights, or a petition is presented for its winding-up or
liquidation, and, in the case of any such proceeding or petition
instituted or presented against it, such proceeding or petition (A)
results in a judgment of insolvency or bankruptcy or the entry of an
order for relief or the making of an order for its winding-up or
liquidation or (B) is not dismissed, discharged, stayed or restrained
in each case within 30 days of the institution or presentation
thereof;
(5) has a resolution passed for its winding-up, official
management or liquidation (other than pursuant to a consolidation,
amalgamation or merger);
(6) seeks or becomes subject to the appointment of an
administrator, provisional liquidator, conservator, receiver, trustee,
custodian or other similar official for it or for all or substantially
all its assets;
(7) has a secured party take possession of all or
substantially all its assets or has a distress, execution, attachment,
sequestration or other legal process levied, enforced or sued on or
against all or substantially all its assets and such secured party
maintains possession, or any such process is not dismissed,
discharged, stayed or restrained, in each case within 30 days
thereafter;
(8) causes or is subject to any event with respect to it
which, under the applicable laws of any jurisdiction, has an analogous
effect to any of the events specified in clauses (1)
to (7) (inclusive); or
(9) takes any action in furtherance of, or indicating its
consent to, approval of, or acquiescence in, any of the foregoing
acts; or
(viii) Merger Without Assumption. The party or any Credit
Support Provider of such party consolidates or amalgamates with, or
merges with or into, or transfers all or substantially all its assets
to, another entity and, at the time of such consolidation,
amalgamation, merger or transfer:-
(1) the resulting, surviving or transferee entity fails to
assume all the obligations of such party or such Credit Support
Provider under this Agreement or any Credit Support Document to
which it or its predecessor was a party by operation of law or
pursuant to an agreement reasonably satisfactory to the other party to
this Agreement; or (2) the benefits of any Credit Support Document
fail to extend (without the consent of the other party) to the
performance by such resulting, surviving or transferee entity of its
obligations under this Agreement.
(b) Termination Events. The occurrence at any time with respect to a
party or, if applicable, any Credit Support Provider of such party or
any Specified Entity of such party of any event specified below
constitutes an Illegality if the event is specified in (i) below, and,
if specified to be applicable, a Credit Event Upon Merger if the event
is specified pursuant to (ii) below or an Additional Termination Event
if the event is specified pursuant to (iii) below:
(i) Illegality. Due to the adoption of, or any change in, any
applicable law after the date on which a Transaction is entered into,
or due to the promulgation of, or any change in, the interpretation by
any court, tribunal or regulatory authority with competent
jurisdiction of any applicable law after such date, it becomes
unlawful (other than as a result of a breach by the party of Section
4(b)) for such party (which will be the Affected Party):
(1) to perform any absolute or contingent obligation to make a
payment or delivery or to receive a payment or delivery in respect of
such Transaction or to comply with any other material provision of
this Agreement relating to such Transaction; or
(2) to perform, or for any Credit Support Provider of such
party to perform, any contingent or other obligation which the party
(or such Credit Support Provider) has under any Credit Support
Document relating to such Transaction;
(ii) Credit Event Upon Merger. If "Credit Event Upon Merger" is
specified in the Schedule as applying to the party, such party ("X"),
any Credit Support Provider of X or any applicable Specified Entity of
X consolidates or amalgamates with, or merges with or into, or
transfers all or substantially all its assets to, another entity and
such action does not constitute an event described in Section
5(a)(viii) but the creditworthiness of the resulting, surviving or
transferee entity is materially weaker than that of X, such
Credit Support Provider or such Specified Entity, as the case may be,
immediately prior to such action (and, in such event, X or its
successor or transferee, as appropriate, will be the Affected Party);
or
(iii) Additional Termination Event. If any "Additional
Termination Event" is specified in the Schedule or any Confirmation as
applying, the occurrence of such event (and, in such event, the
Affected Party or Affected Parties shall be as specified for such
Additional Termination Event in the Schedule or such Confirmation).
(c) Event of Default and Illegality. If an event or circumstance
which would otherwise constitute or give rise to an Event of Default
also constitutes an Illegality, it will be treated as an Illegality
and will not constitute an Event of Default.
6. Early Termination
(a) Right to Terminate Following Event of Default. If at any time an
Event of Default with respect to a party (the "Defaulting Party") has
occurred and is then continuing, the other party (the "Non-defaulting
Party") may, by not more than 20 days notice to the Defaulting Party
specifying the relevant Event of Default, designate a day not earlier
than the day such notice is effective as an Early Termination Date in
respect of all outstanding Transactions. If, however, "Automatic Early
Termination" is specified in the Schedule as applying to a party, then
an Early Termination Date in respect of all outstanding Transactions
will occur immediately upon the occurrence with respect to such party
of an Event of Default specified in Section 5(a)(vii)(1), (3), (5),
(6) or, to the extent analogous thereto, (8), and as of the time
immediately preceding the institution of the relevant proceeding or
the presentation of the relevant petition upon the occurrence with
respect to such party of an Event of Default specified in Section
5(a)(vii)(4) or, to the extent analogous thereto, (8).
(b) Right to Terminate Following Termination Event.
(i) Notice. If a Termination Event occurs, an Affected Party
will, promptly upon becoming aware of it, notify the other party,
specifying the nature of that Termination Event and each Affected
Transaction and will also give such other information about that
Termination Event as the other party may reasonably require.
(ii) Two Affected Parties. If an Illegality under Section
5(b)(i)(1) occurs and there are two Affected Parties, each party will
use all reasonable efforts to reach agreement within 30 days after
notice thereof is given under Section 6(b)(i) on action to avoid that
Termination Event.
(iii) Right to Terminate. If:
(1) an agreement under Section 6(b)(ii) has not been effected
with respect to all Affected Transactions within 30 days after an
Affected Party gives notice under Section 6(b)(i); or (2)an Illegality
other than that referred to in Section 6(b)(ii), a Credit Event Upon
Merger or an Additional Termination Event occurs, either party in the
case of an Illegality, any Affected Party in the case of an Additional
Termination Event if there is more than one Affected Party, or the
party which is not the Affected Party in the case of a Credit Event
Upon Merger or an Additional Termination Event if there is only one
Affected Party may, by not more than 20 days notice to the other party
and provided that the relevant Termination Event is then continuing,
designate a day not earlier than the day such notice is effective
as an Early Termination Date in respect of all Affected Transactions.
(c) Effect of Designation.
(i) If notice designating an Early Termination Date is given
under Sect ion 6(a) or (b), the Early Termination Date will occur on
the date so designated, whether or not the relevant Event of Default
or Termination Event is then continuing.
(ii) Upon the occurrence or effective designation of an Early
Termination Date, no further payments or deliveries under Section
2(a)(i) or 2(d) in respect of the Terminated Transactions will
be required to be made, but without prejudice to the other provisions
of this Agreement. The amount, if any, payable in respect of an Early
Termination Date shall be determined pursuant to Section 6(e).
(d) Calculations.
(i) Statement. On or as soon as reasonably practicable following
the occurrence of an Early Termination Date, each party will make the
calculations on its part, if any, contemplated by Section 6(e)
and will provide to the other party a statement (1) showing, in
reasonable detail, such calculations (including all relevant
quotations and specifying any amount payable under Section 6(e)) and
(2) giving details of the relevant account to which any amount payable
to it is to be paid. In the absence of written confirmation from the
source of a quotation obtained in determining a Market Quotation, the
records of the party obtaining such quotation will be conclusive
evidence of the existence and accuracy of such
quotation.
(ii) Payment Date. An amount calculated as being due in respect
of any Early Termination Date under Section 6(e) will be payable on
the day that notice of the amount payable is effective (in the
case of an Early Termination Date which is designated or occurs as a
result of an Event of Default) and on the day which is two Local
Business Days after the day on which notice of the amount payable
is effective (in the case of an Early Termination Date which is
designated as a result of a Termination Event). Such amount will be
paid together with (to the extent permitted under applicable law)
interest thereon (before as well as after judgment), from (and
including) the relevant Early Termination Date to (but excluding) the
date such amount is paid, at the Applicable Rate. Such interest will
be calculated on the basis of daily compounding and the actual number
of days elapsed.
(e) Payments on Early Termination. If an Early Termination Date
occurs, the following provisions shall apply based on the parties'
election in the Schedule of a payment measure, either "Market
Quotation" or "Loss", and a payment method, either the "First Method"
or the "Second Method". If the parties fail to designate a payment
measure or payment method in the Schedule, it will be deemed that
"Market Quotation" or the "Second Method", as the case may be, shall
apply. The amount, if any, payable in respect of an Early Termination
Date and determined pursuant to this Section will be subject to any
Set-off.
(i) Events of Default. If the Early Termination Date results
from an Event of Default:
(1) First Method and Market Quotation. If the First Method
and Market Quotation apply, the Defaulting Party will pay to the Non-
defaulting Party the excess, if a positive number, of (A) the sum of
the Settlement Amount (determined by the Non-defaulting Party) in
respect of the Terminated Transactions and the Unpaid Amounts owing to
the Non-defaulting Party over (B) the Unpaid Amounts owing to the
Defaulting Party.
(2) First Method and Loss. If the First Method and Loss
apply, the Defaulting Party will pay to the Non-defaulting Party, if a
positive number, the Non-defaulting Party's Loss in respect
of this Agreement.
(3) Second Method and Market Quotation. If the Second Method
and Market Quotation apply, an amount will be payable equal to (A) the
sum of the Settlement Amount (determined by the Non-defaulting Party)
in respect of the Terminated Transactions and the Unpaid Amounts
owing to the Non-defaulting Party less (B) the Unpaid Amounts owing to
the Defaulting Party. If that amount is a positive number, the
Defaulting Party will pay it to the Non-defaulting Party;
if it is a negative number, the Non-defaulting Party will pay the
absolute value of that amount to the Defaulting Party.
(4) Second Method and Loss. If the Second Method and Loss
apply, an amount will be payable equal to the Non-defaulting Party's
Loss in respect of this Agreement. If that amount is a positive
number, the Defaulting Party will pay it to the Non-defaulting Party;
if it is a negative number, the Non-defaulting Party will pay the
absolute value of that amount to the Defaulting Party.
(ii) Termination Events. If the Early Termination Date results
from a Termination Event:
(1) One Affected Party. If there is one Affected Party, the
amount payable will be determined in accordance with Section
6(e)(i)(3), if Market Quotation applies, or Section 6(e)(i)(4), if
Loss applies, except that, in either case, references to the
Defaulting Party and to the Non-defaulting Party will be deemed to be
references to the Affected Party and the party which is not the
Affected Party, respectively, and, if Loss applies and fewer than all
the Transactions are being terminated, Loss shall be calculated in
respect of all Terminated Transactions.
(2) Two Affected Parties. If there are two Affected Parties:
(A) if Market Quotation applies, each party will determine a
Settlement Amount in respect of the Terminated Transactions, and an
amount will be payable equal to (I) the sum of (a) one-half of the
difference between the Settlement Amount of the party with the higher
Settlement Amount ("X") and the Settlement Amount of the party with
the lower Settlement Amount ("Y") and (b) the Unpaid Amounts owing to
X less (II) the Unpaid Amounts owing to Y; and (B) if Loss applies,
each party will determine its Loss in respect of this Agreement (or,
if fewer than all the Transactions are being terminated, in respect of
all Terminated Transactions) and an amount will be payable equal to
one-half of the difference between the Loss of the party with the
higher Loss ("X") and the Loss of the party with the lower Loss ("Y").
If the amount payable is a positive number, Y will pay it to X; if it
is a negative number, X will pay the absolute value of that amount to
Y.
(iii) Adjustment for Bankruptcy. In circumstances where an Early
Termination Date occurs because "Automatic Early Termination" applies
in respect of a party, the amount determined under this Section 6(e)
will be subject to such adjustments as are appropriate and permitted
by law to reflect any payments or deliveries made by one party to the
other under this Agreement (and retained by such other party) during
the period from the relevant Early Termination Date to the date for
payment determined under Section 6(d)(ii).
(iv) Pre-Estimate. The parties agree that if Market Quotation
applies an amount recoverable under this Section 6(e) is a reasonable
pre-estimate of loss and not a penalty. Such amount is payable for
the loss of bargain and the loss of protection against future risks
and except as otherwise provided in this Agreement neither party will
be entitled to recover any additional damages as a consequence
of such losses.
7. Transfer
Neither this Agreement nor any interest or obligation in or under this
Agreement may be transferred (whether by way of security or otherwise)
by either party without the prior written consent of the other party,
except that:
(a) a party may make such a transfer of this Agreement pursuant to a
consolidation amalgamation with, or merger with or into, or transfer
of all or substantially all its assets to, another entity (but without
prejudice to any other right or remedy under this Agreement); and
(b) a party may make such a transfer of all or any part of its
interest in any amount payable to it from a Defaulting Party under
Section 6(e). Any purported transfer that is not in compliance with
this Section will be void.
8. Miscellaneous
(a) Entire Agreement. This Agreement constitutes the entire agreement
and understanding of the parties with respect to its subject matter
and supersedes all oral communication and prior writings with respect
thereto.
(b) Amendments. No amendment, modification or waiver in respect of
this Agreement will be effective unless in writing (including a
writing evidenced by a facsimile transmission) and executed by each of
the parties or confirmed by an exchange of telexes or electronic
messages on an electronic messaging system.
(c) Survival of Obligations. Without prejudice to Sections 2(a)(iii)
and 6(c)(ii), the obligations of the parties under this Agreement will
survive the termination of any Transaction.
(d) Remedies Cumulative. Except as provided in this Agreement, the
rights, powers, remedies and privileges provided in this Agreement are
cumulative and not exclusive of any rights, powers, remedies
and privileges provided by law.
(e) Counterparts and Confirmations.
(i) This Agreement (and each amendment, modification and waiver
in respect of it) may be executed and delivered in counterparts
(including by facsimile transmission), each of which will be
deemed an original.
(ii) The parties intend that they are legally bound by the terms
of each Transaction from the moment they agree to those terms (whether
orally or otherwise). A Confirmation shall be entered into as soon as
practicable and may be executed and delivered in counterparts
(including by facsimile transmission) or be created by an exchange of
telexes or by an exchange of electronic messages on an electronic
messaging system, which in each case will be sufficient for all
purposes to evidence a binding supplement to this Agreement. The
parties will specify therein or through another effective means that
any such counterpart, telex or electronic message constitutes a
Confirmation.
(f) No Waiver of Rights. A failure or delay in exercising any right,
power or privilege in respect of this Agreement will not be presumed
to operate as a waiver, and a single or partial exercise of any right,
power or privilege will not be presumed to preclude any subsequent or
further exercise, of that right, power or privilege or the exercise of
any other right, power or privilege.
(g) Headings. The headings used in this Agreement are for convenience
of reference only and are not to affect the construction of or to be
taken into consideration in interpreting this Agreement.
9. Expenses
A Defaulting Party will, on demand, indemnify and hold harmless the
other party for and against all reasonable out-of-pocket expenses,
including legal fees, incurred by such other party by reason of the
enforcement and protection of its rights under this Agreement or any
Credit Support Document to which the Defaulting Party is a party or by
reason of the early termination of any Transaction, including, but not
limited to, costs of collection.
10. Notices
(a) Effectiveness. Any notice or other communication in respect of
this Agreement may be given in any manner set forth below (except that
a notice or other communication under Section 5 or 6 may not be given
by facsimile transmission or electronic messaging system) to the
address or number or in accordance with the electronic messaging
system details provided (see the Schedule) and will be deemed
effective as indicated:
(i) if in writing and delivered in person or by courier, on the
date it is delivered;
(ii) if sent by telex, on the date the recipient's answerback is
received;
(iii) if sent by facsimile transmission, on the date that
transmission is received by a responsible employee of the recipient in
legible form (it being agreed that the burden of proving receipt will
be on the sender and will not be met by a transmission report
generated by the sender's facsimile machine);
(iv) if sent by certified or registered mail (airmail, if
overseas) or the equivalent (return receipt requested), on the date
that mail is delivered or its delivery is attempted; or
(v) if sent by electronic messaging system, on the date that
electronic message is received, unless the date of that delivery (or
attempted delivery) or that receipt, as applicable, is not a Local
Business Day or that communication is delivered (or attempted) or
received, as applicable, after the close of business on a Local
Business Day, in which case that communication shall be deemed given
and effective on the first following day that is a Local Business Day.
(b) Change of Addresses. Either party may by notice to the other
change the address, telex or facsimile number or electronic messaging
system details at which notices or other communications are to be
given to it.
11. Governing Law and Jurisdiction
(a) Governing Law. This Agreement will be governed by and construed
in accordance with the law specified in the Schedule.
(b) Jurisdiction. With respect to any suit, action or proceedings
relating to this Agreement ("Proceedings"), each party irrevocably:
(i) submits to the jurisdiction of the English courts, if this
Agreement is expressed to be governed by English law, or to the non-
exclusive jurisdiction of the courts of the State of New York and the
United States District Court located in the Borough of Manhattan in
New York City, if this Agreement is expressed to be governed by the
laws of the State of New York; and
(ii) waives any objection which it may have at any time to the
laying of venue of any Proceedings brought in any such court, waives
any claim that such Proceedings have been brought in an inconvenient
forum and further waives the right to object, with respect to such
Proceedings, that such court does not have any jurisdiction over such
party.
Nothing in this Agreement precludes either party from bringing
Proceedings in any other jurisdiction (outside, if this Agreement is
expressed to be governed by English law, the Contracting States, as
defined in Section 1(3) of the Civil Jurisdiction and Judgments ▇▇▇
▇▇▇▇ or any modification, extension or re-enactment thereof for the
time being in force) nor will the bringing of Proceedings in any one
or more jurisdictions preclude the bringing of Proceedings in any
other jurisdiction.
(c) Waiver of Immunities. Each party irrevocably waives, to the
fullest extent permitted by applicable law, with respect to itself and
its revenues and assets (irrespective of their use or intended use),
all immunity on the grounds of sovereignty or other similar grounds
from (i) suit, (ii) jurisdiction of any court, (iii) relief by way of
injunction, order for specific performance or for recovery of
property, (iv) attachment of its assets (whether before or after
judgment) and (v) execution or enforcement of any judgment to which it
or its revenues or assets might otherwise be entitled in any
Proceedings in the courts of any jurisdiction and irrevocably agrees,
to the extent permitted by applicable law, that it will not claim any
such immunity in any Proceedings.
12. Definitions
As used in this Agreement:
"Additional Termination Event" has the meaning specified in Section
5(b).
"Affected Party" has the meaning specified in Section 5(b).
"Affected Transactions" means (a) with respect to any Termination
Event consisting of an Illegality, all Transactions affected by the
occurrence of such Termination Event and (b) with respect to any other
Termination Event, all Transactions.
"Affiliate" means, subject to the Schedule, in relation to any person,
any entity controlled, directly or indirectly, by the person, any
entity that controls, directly or indirectly, the person or any entity
directly or indirectly under common control with the person. For this
purpose, "control" of any entity or person means ownership of a
majority of the voting power of the entity or person.
"Applicable Rate" means:
(a) in respect of obligations payable or deliverable (or which would
have been but for Section 2(a)(iii))by a Defaulting Party, the Default
Rate;
(b) in respect of an obligation to pay an amount under Section 6(e)
of either party from and after the date (determined in accordance with
Section 6(d)(ii)) on which that amount is payable, the Default Rate;
(c) in respect of all other obligations payable or deliverable (or
which would have been but for Section 2(a)(iii)) by a Non-defaulting
Party, the Non-default Rate; and
(d) in all other cases, the Termination Rate.
"Consent" includes a consent, approval, action, authorisation,
exemption, notice, filing, registration or exchange control consent.
"Credit Event Upon Merger" has the meaning specified in Section 5(b).
"Credit Support Document" means any agreement or instrument that is
specified as such in this Agreement.
"Credit Support Provider" has the meaning specified in the Schedule.
"Default Rate" means a rate per annum equal to the cost (without proof
or evidence of any actual cost) to the relevant payee (as certified by
it) if it were to fund or of funding the relevant amount plus 1% per
annum.
"Defaulting Party" has the meaning specified in Section 6(a).
"Early Termination Date" means the date determined in accordance with
Section 6(a) or 6(b)(iii).
"Event of Default" has the meaning specified in Section 5(a) and, if
applicable, in the Schedule.
"Illegality" has the meaning specified in Section 5(b).
"Law" includes any treaty, law, rule or regulation and "lawful" and
"unlawful" will be construed accordingly.
"Local Business Day" means, subject to the Schedule, a day on which
commercial banks are open for business (including dealings in foreign
exchange and foreign currency deposits) (a) in relation to any
obligation under Section 2(a)(i), in the place(s) specified in the
relevant Confirmation or, if not so specified, as otherwise agreed by
the parties in writing or determined pursuant to provisions contained,
or incorporated by reference, in this Agreement, (b) in relation to
any other payment, in the place where the relevant account is located,
(c) in relation to any notice or other communication, including notice
contemplated under Section 5(a)(i), in the city specified in the
address for notice provided by the recipient and, in the case of a
notice contemplated by Section 2(b), in the place where the relevant
new account is to be located and (d) in relation to Section
5(a)(v)(2), in the relevant locations for performance with respect to
such Specified Transaction.
"Loss" means, with respect to this Agreement or one or more Terminated
Transactions, as the case may be, and a party, an amount that party
reasonably determines in good faith to be its total losses and costs
(or gain, in which case expressed as a negative number) in connection
with this Agreement or that Terminated Transaction or group of
Terminated Transactions, as the case may be, including any loss of
bargain, cost of funding or, at the election of such party but without
duplication, loss or cost incurred as a result of its terminating,
liquidating, obtaining or reestablishing any hedge or related trading
position (or any gain resulting from any of them). Loss includes
losses and costs (or gains) in respect of any payment or delivery
required to have been made (assuming satisfaction of each applicable
condition precedent) on or before the relevant Early Termination Date
and not made, except, so as to avoid duplication, if Section
6(e)(i)(1) or (3) or 6(e)(ii)(2)(A) applies. Loss does not include a
party's legal fees and out-of-pocket expenses referred to under
Section 9. A party will determine its Loss as of the relevant Early
Termination Date, or, if that is not reasonably practicable, as of the
earliest date thereafter as is reasonably practicable. A party may
(but need not) determine its Loss by reference to quotations of
relevant rates or prices from one or more leading dealers
in the relevant markets.
"Market Quotation" means, with respect to one or more Terminated
Transactions and a party making the determination, an amount
determined on the basis of quotations from Reference Market-makers.
Each quotation will be for an amount, if any, that would be paid to
such party (expressed as a negative number) or by such party
(expressed as a positive number) in consideration of an agreement
between such party (taking into account any existing Credit Support
Document with respect to the obligations of such party) and the
quoting Reference Market-maker to enter into a transaction (the
"Replacement Transaction") that would have the effect of preserving
for such party the economic equivalent of any payment or delivery
(whether the underlying obligation was absolute or contingent and
assuming the satisfaction of each applicable condition precedent) by
the parties under Section 2(a)(i) in respect of such Terminated
Transaction or group of Terminated Transactions that would, but for
the occurrence of the relevant Early Termination Date, have
been required after that date. For this purpose, Unpaid Amounts in
respect of the Terminated Transaction or group of Terminated
Transactions are to be excluded but, without limitation, any payment
or delivery that would, but for the relevant Early Termination Date,
have been required (assuming satisfaction of each applicable condition
precedent) after that Early Termination Date is to be included. The
Replacement Transaction would be subject to such documentation as such
party and the Reference Market-maker may, in good faith, agree. The
party making the determination (or its agent) will request each
Reference Market-maker to provide its quotation to the extent
reasonably practicable as of the same day and time (without regard to
different time zones) on or as soon as reasonably practicable after
the relevant Early Termination Date. The day and time as of which
those quotations are to be obtained will be selected in good
faith by the party obliged to make a determination under Section 6(e),
and, if each party is so obliged, after consultation with the other.
If more than three quotations are provided, the Market Quotation will
be the arithmetic mean of the quotations, without regard to the
quotations having the highest and lowest values. If exactly three such
quotations are provided, the Market Quotation will be the quotation
remaining after disregarding the highest and lowest quotations. For
this purpose, if more than one quotation has the same highest value or
lowest value, then one of such quotations shall be disregarded. If
fewer than three quotations are provided, it will be deemed that the
Market Quotation in respect of such Terminated Transaction or group
of Terminated Transactions cannot be determined.
"Non-default Rate" means a rate per annum equal to the cost (without
proof or evidence of any actual cost) to the Non-defaulting Party (as
certified by it) if it were to fund the relevant amount.
"Non-defaulting Party" has the meaning specified in Section 6(a).
"Potential Event of Default" means any event which, with the giving of
notice or the lapse of time or both, would constitute an Event of
Default.
"Reference Market-makers" means four leading dealers in the relevant
market selected by the party determining a Market Quotation in good
faith (a) from among dealers of the highest credit standing which
satisfy all the criteria that such party applies generally at the time
in deciding whether to offer or to make an extension of credit and (b)
to the extent practicable, from among such dealers having an office in
the sane city.
"Scheduled Payment Date" means a date on which a payment or delivery
is to be made under Section 2(a)(i) with respect to a Transaction.
"Set-off" means set-off, offset, combination of accounts, right of
retention or withholding or similar right or requirement to which the
payer of an amount under Section 6 is entitled or subject (whether
arising under this Agreement, another contract, applicable law or
otherwise) that is exercised by, or imposed on, such
payer.
"Settlement Amount" means, with respect to a party and any Early
Termination Date, the sum of:
(a) the Market Quotations (whether positive or negative) for each
Terminated Transaction or group of Terminated Transactions for which a
Market Quotation is determined; and
(b) such party's Loss (whether positive or negative and without
reference to any Unpaid Amounts) for each Terminated Transaction or
group of Terminated Transactions for which a Market Quotation cannot
be determined or would not (in the reasonable belief of the party
making the determination) produce a commercially reasonable result.
"Specified Entity" has the meaning specified in the Schedule.
"Specified Indebtedness" means, subject to the Schedule, any
obligation (whether present or future, contingent or otherwise, as
principal or surety or otherwise) in respect of borrowed money.
"Specified Transaction" means, subject to the Schedule, (a) any
transaction (including an agreement with respect thereto) now existing
or hereafter entered into between one party to this Agreement (or any
Credit Support Provider of such party or any applicable Specified
Entity of such party) and the other party to this Agreement (or
any Credit Support Provider of such other party or any applicable
Specified Entity of such other party) which is a rate swap
transaction, basis swap, forward rate transaction, commodity swap,
commodity option, equity or equity index swap, equity or equity index
option, bond option, interest rate option, foreign exchange
transaction, cap transaction, floor transaction, collar transaction,
currency swap transaction, cross-currency rate swap transaction,
currency option or any other similar transaction (including any option
with respect to any of these transactions), (b) any combination of
these transactions and (c) any other transaction identified as a
Specified Transaction in this Agreement or the relevant confirmation.
"Terminated Transactions" means with respect to any Early Termination
Date (a) if resulting from a Termination Event, all Affected
Transactions and (b) if resulting from an Event of Default, all
Transactions (in either case) in effect immediately before the
effectiveness of the notice designating that Early Termination
Date (or, if "Automatic Early Termination" applies, immediately before
that Early Termination Date).
"Termination Event" means an Illegality or, if specified to be
applicable, a Credit Event Upon Merger or an Additional Termination
Event.
"Termination Rate" means a rate per annum equal to the arithmetic mean
of the cost (without proof or evidence of any actual cost) to each
party (as certified by such party) if it were to fund or of funding
such amounts.
"Unpaid Amounts" owing to any party means, with respect to an Early
Termination Date, the aggregate of (a) in respect of all Terminated
Transactions, the amounts that became payable (or that would have
become payable but for Section 2(a)(iii)) to such party under Section
2(a)(i) on or prior to such Early Termination Date and which remain
unpaid as at such Early Termination Date and (b) in respect of each
Terminated Transaction, for each obligation under Section 2(a)(i)
which was (or would have been but for Section 2(a)(iii)) required to
be settled by delivery to such party on or prior to such Early
Termination Date and which has not been so settled as at such Early
Termination Date, an amount equal to the fair market value of that
which was (or would have been) required to be delivered as of the
originally scheduled date for delivery, in each case together with (to
the extent permitted under applicable law) interest, in the currency
of such amounts, from (and including) the date such amounts or
obligations were or would have been required to have been paid or
performed to (but excluding) such Early Termination Date, at the
Applicable Rate. Such amounts of interest will be calculated on the
basis of daily compounding and the actual number of days elapsed. The
fair market value of any obligation referred to in clause (b) above
shall be reasonably determined by the party obliged to make the
determination under Section 6(e) or, if each party is so obliged, it
shall be the average of the fair market values reasonably determined
by both parties.
IN WITNESS WHEREOF the parties have executed this document on the
respective dates specified below with effect from the date specified
on the first page of this document.
LASALLE BANK NATIONAL ASSOCIATION
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
Date: August 8, 2003
AMCON DISTRIBUTING COMPANY
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and CFO
Date: August 6, 2003
SCHEDULE
to the
Master Agreement
dated as of May 12, 2003
between
LASALLE BANK NATIONAL ASSOCIATION ("Party A")
and
AMCON DISTRIBUTING COMPANY ("Party B")
Part 1
Termination Provisions
In this Agreement -
(a) "Specified Entity" means in relation to Party A for the purpose
of:
Section 5(a)(v), Not applicable
Section 5(a)(vi), Not applicable
Section 5(a)(vii), Not applicable
Section 5(b)(ii), Not applicable
and in relation to Party B for the purpose of:
Section 5(a)(v), All Affiliates
Section 5(a)(vi), All Affiliates
Section 5(a)(vii), All Affiliates
Section 5(b)(ii), All Affiliates
(b) "Specified Transaction" will have the meaning specified in Section
12 of this Agreement.
(c) The "Cross Default" provisions of Section 5(a)(vi) will not apply
to Party A will apply to Party B, provided, however, that is shall not
constitute an Evene of Default under this Section 5(a)(vi) if (I) such
event, condition or failure arises in the ordinary course of business
by mistake, oversight or transfer difficulties in the payment of
money, (ii) such event, condition or failure is remedied on or before
the third Business Day after the occurrence or existence of such
event, condition or failure, and (iii) no Specified Indebtedness in an
aggregate amount equal to or in excess of the Threshold Amount is
accelerated as a result of such event, condition or failure.
"Specified Indebtedness" shall mean any obligation (whether
present or future, contingent or otherwise, as principal or surety or
otherwise ) (i) in respect of borrowed money (which, for the avoidance
of doubt, shall include, without limitation, bonds, notes, commercial
paper or similar instruments issued or guaranteed by the relevant
party; and shall exclude deposits received), (ii) any amount due and
payable in respect of any Specified Transaction (except that, for this
purpose only, the words "and any other entity" shall be substituted
for the words "and the other party to this Agreement (or any Credit
Support Provider of such other party or any applicable Specified
Entity of such other party)" where they appear in the definition of
Specified Transaction), any repo transaction, any reverse repo
transaction and any stock loan transaction and (iii) with respect to
Party B shall include, without limitation, and without regard to the
Threshold Amount the obligations of Party B under that certain Loan
and Security Agreement dated as of June 1, 2001 between Party B, as
Borrower, and Party A, as a Lender and Agent, and the Lenders party
thereto from time to time as the same may be amended, modified or
supplemented from time to time (the "Credit Agreement:).
Section 5(a)(vi) is amended by insertion of the following words after
the words "due and payable on line 8:
"or, in the case of Specified Indebtedness in respect of any Specified
Transaction, any repo transaction, any reverse repo transaction and
any stock loan transaction, which has resulted in such Specified
Indebtedness becoming due and payable as a result of the early
termination of the relevant Specified Transaction, repo transaction,
reverse repo transaction or stock lending transaction, as the case may
be."
"Threshold Amount" means, in relation to Party A, not applicable, and
in relation to Party B, zero.
(d) The "Credit Event Upon Merger" provisions of Section 5(b)(ii) will
not apply to Party A and will apply to Party B.
(e) The "Automatic Early Termination" provision of Section 6(a) will
not apply to either party.
(f) Payments on Early Termination. For the purpose of Section 6(c) of
this Agreement:
(i) Market Quotation* will apply.
(ii) The Second Method will apply.
(g) Additional Termination Event will apply. The following shall
constitute an Additional Termination Event:
If (i) the Credit Agreement shall be paid or prepaid in full,
expire, terminate, or otherwise cease to be in full force and effect,
other than because of an Event of Default (as defined in the Credit
Agreement) with respect to Party B, or (ii) Party A shall cease (a) to
be a party to, or (b) to have any commitments under the Credit
Agreement, Party A or Party B shall have the right, at its sole
discretion to terminate any Transaction under this Agreement. For
purposes hereof, each such terminated Transaction shall constitute and
Affected Transaction under the Agreement.
For the purpose of the foregoing Termination Event, the Affected Party
or Affected Parties shall be Party A and Party B.
Part 2
Documents to be delivered
For the purpose of Section 4(a:
Documents to be delivered are:
(i) Each party shall promptly deliver to the other party,
certified evidence of the authority, incumbency and specimen signature
of each authorized person executing any document on its behalf in
connection with this Agreement upon execution of each document by any
person. Covered by Section 3(d) representation.
(ii) Each party upon request shall promptly deliver to the other
party, a copy of its most recent Annual Report containing consolidated
financial statements, prepared in accordance with accounting
principles that are generally accepted for institutions of its type in
the jurisdiction of its organization and certified by independent
public accountants. Covered by Section 3(d) representation.
(iii) Each party upon request shall promptly deliver to the other
party, a copy of its most recent unaudited interim consolidated
financial statements prepared in accordance with accounting principles
that are generally accepted for institutions of its type in the
jurisdiction of its organization in each case consistently applied.
Covered by Section 3(d) representation.
(iv) Party B shall promptly deliver to Party A an opinion of
counsel substantially in the form of Annex A. Not covered by Section
3(d) representation.
(v) Party B shall promptly deliver to Party A such other
information with respect to its condition, or operations, financial or
otherwise, as Party A may reasonably request from time to time.
Covered by Section 3(d) representation.
Part 3
Miscellaneous
(a) Addresses for Notices. For the purpose of Section 10(a):
Address for notices or communications to Party A:
Address: LaSalle Bank National Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Treasury Operation
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Address for notices or communications to Party B:
Address: AMCON Distributing Company
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
(b) Calculation Agent. The Calculation Agent shall be Party A.
(c) Credit Support Document. Details of any Credit Support Document:
Credit Support Document means, in relation to Party A, the Credit
Agreement.
(d) Credit Support Provider. Credit Support Provider means in relation
to Party B, none.
(e) Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York without reference to
choice of law doctrine.
(f) Netting of Payments. Subparagraph (ii) of Section 2(c) of this
Agreement will not apply to any Transactions.
(g) "Affiliate" will have the meaning specified in Section 12.
Part 4
Other Provisions
(a) ISDA Definitions. The 2000 ISDA Definitions, as supplemented by
the Supplement to the 2000 ISDA Definitions (the "Definitions"), as
published by the International Swaps and Derivatives Association,
Inc., shall be deemed a part of this Agreement as if fully set forth
herein. The Definitions and the provisions of Section 12 of this
Agreement shall be deemed a part of each Confirmation as if set forth
in full therein.
(b) Interpretation. In the event of any inconsistency between the
provisions of this Schedule and the Definitions, this Schedule will
prevail. In the event of any inconsistency between the provisions of
this Schedule and the printed Agreement of which it forms a part, this
Schedule will prevail. In the event of any inconsistency between the
provisions of any Confirmation and this Schedule, such Confirmation
will prevail for the purpose of the relevant Transaction.
(c) Financial Condition. Party B represents and warrants to Party A
(which representation will be deemed to be repeated on each date on
which a Transaction is entered into) that there has been no material
adverse change in its financial condition since the last day of the
one year period covered by its most recently prepared year end
financial statement that is likely to affect its ability to perform
its obligations under this Agreement.
(d) Affected Parties. For the purposes of Section 6(e) (Payments on
Early Termination), both parties shall be deemed to be Affected
Parties in connection with the Termination Events described in Section
5(b)(i), so that payments on early termination shall be calculated as
provided in Section 6(e)(ii).
(e) Additional Representations. Each party represents and warrants
to the other that (i) it is entering into this Agreement, any Credit
Support Document to which it is a party, each Transaction, and any
other documentation relating to this Agreement that it is required by
the Agreement to deliver as principal (and not as agent or in any
other capacity, fiduciary or otherwise) and (ii) it is an "eligible
contract participant" under, and as defined in, Section 1a of the
Commodity Exchange Act (7 USC 1a), amended from time to time.
(f) Consent to Recording. Each party (i) consents to the recording
of the telephone conversations of trading, marketing and other
relevant personnel of the parties in connection with this Agreement or
any potential Transaction and (ii) agrees that such recording may be
submitted in evidence to any court or in any proceedings with respect
to this Agreement or any Transaction thereunder.
(g) Transfer. Each party agrees that with regard to the transfer
provisions set forth in Section 7, consent to any such transfer shall
not be unreasonably withheld.
(h) Waiver of Jury Trial. Each Party irrevocably waives any and all
right to trial by jury in any legal proceeding instituted in
connection with this Agreement or any Transaction to the fullest
extent permitted by law. As to any matter for which a jury trial
cannot be waived, each party agrees not to assert any such matter as a
cross claim or counterclaim in, nor move to consolidate the same with,
any legal proceeding in which a jury trial is waived.
(i) Setoff. Each party agrees that the following provision shall be
added as Section 6(f) of this Agreement:
"(f) Setoff. Any amount (the "Early Termination Amount")
payable to one party (the "Payee") by the other party (the "Payer")
under Section 6(e) of this Agreement, in circumstances where there is
a Defaulting Party or one Affected Party in the case where a
Termination Event under this Agreement has occurred, will, at the
option of the party ("X") other than the Defaulting Party or the
Affected Party (and without prior notice to the Defaulting Party or
the Affected Party), be reduced by its setoff against any amount(s)
(the "Other Agreement Amount") payable (whether at such time or in the
future or upon the occurrence of a contingency) by the Payee to the
Payer (irrespective of the currency, place of payment or booking
office of the obligation) under any other agreement(s) between the
Payee and the Payer or instrument(s) or undertaking(s) issued or
executed by one party to, or in favor of, the other party (and the
Other Agreement Amount will be discharged promptly and in all respects
to the extent it is so setoff). X will give notice to the other party
of any setoff effected under this Section 6(f).
For this purpose, either the Early Termination Amount or the
Other Agreement Amount (or the relevant portion of such amounts) may
be converted by X into the currency in which the other is denominated
at the rate of exchange at which such party would be able, acting in a
reasonable manner and in good faith, to purchase the relevant amount
of such currency. The term "rate of exchange" includes, without
limitation, any premiums and costs of exchange payable in connection
with the purchase of or conversion into the relevant currency.
If an obligation is unascertained, X may in good faith estimate
that obligation and setoff in respect of the estimate, subject to the
relevant party accounting to the other when the obligation is
ascertained.
Nothing in Section 6(f) shall be effective to create a charge or
other security interest. This Section shall be without prejudice and
in addition to any right of setoff, combination of accounts, lien or
other right to which any party is at any time otherwise entitled
(whether by operation of law, contract or otherwise)."
(j) Relationship between the Parties. This Agreement is hereby
amended by the addition of a new Section 13 as follows:
"13. Relationship between the Parties.
Each party will be deemed to represent to the other party on the
date on which it enters into a Transaction (absent a written agreement
between the parties that expressly imposes affirmative obligations to
the contrary for that Transaction):
(a) Non Reliance. It is acting for its own account, and it has
made its own independent decisions to enter into that Transaction and
as to whether that Transaction is appropriate or proper for it based
upon its own judgment and upon advice from such advisors as it has
deemed necessary. It is not relying on any communication (written or
oral) of the other party as investment advice or as a recommendation
to enter into that Transaction; it being understood that information
and explanations related to the terms and conditions of a Transaction
shall not be considered investment advice or a recommendation to enter
into that Transaction. No communication (written or oral) received
from the other party shall be deemed to be an assurance or guarantee
as to the expected results of that Transaction.
(b) Assessment and Understanding. It is capable of assessing
the merits of and understanding (on its own behalf or through
independent professional advice), and understands and accepts, the
terms, conditions and risks of that Transaction.
(c) Status of Parties. The other party is not acting as a
fiduciary for or an advisor to it in respect of that Transaction."
(k) Incorporation by Reference of Covenants. Party B covenants and
agrees that, from and after the date hereof and thereafter until all
obligations of Party B hereunder are paid in full and this Agreement
is terminated, it shall duly keep, perform and observe each and every
covenant set forth in the Credit Agreement. All of such covenants,
together with related definitions and ancillary provisions, are hereby
incorporated into this Agreement by reference, mutatis mutandis, as if
such terms were set forth in this Agreement in full, without regard to
any termination of such Credit Agreement, without regard to any
expiration of any commitment thereunder and without regard to the
final payment in full of any obligations of Party B or any other
person or entity thereunder, provided, that no such covenant set forth
above shall be incorporated herein by reference if such incorporation,
by itself, would be a breach of the Credit Agreement. If an event is
the subject of both a covenant incorporated herein by reference and
another covenant set forth in this Agreement, Party B shall comply
with the covenant that imposes on it the stricter requirement. To the
extent that any covenant incorporated herein by reference is
inconsistent with the other terms of this Agreement, Party A shall not
be deemed to have waived any rights hereunder by virtue of such
inconsistency. If the Credit Agreement terminates, any commitment
thereunder expires or any obligations of Party B thereunder are paid
in full and any covenant incorporated herein by reference requires
Party B to obtain the consent of any agent, lender or lenders, then,
for the purpose of this Agreement, Party B shall be required to obtain
the consent of Party A.
IN WITNESS WHEREOF, the parties have executed this Agreement by their
duly authorized officers as of the date hereof.
LASALLE BANK NATIONAL ASSOCIATION AMCON DISTRIBUTING COMPANY
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇ By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice Presidetn Title: Vice President & CFO