EXHIBIT 10.3
FOURTH AMENDMENT TO CREDIT AGREEMENT
This amendment is made effective as of the 10th day of October, 1997 by and
between AMCON Distributing Company, a Delaware corporation (the "Borrower"),
and Norwest Bank Minnesota, National Association, a national banking
association (the "Lender").
RECITALS
The Borrower and the Lender have entered into a Credit and Security Agreement
dated as of July 25, 1994, (as amended, the "Credit Agreement").
The Lender has agreed to make certain loan advances to the Borrower pursuant
to the terms and conditions set forth in the Credit Agreement.
The loan advances under the Credit Agreement are evidenced by the Borrower's
revolving note dated as of December 31, 1996, in the maximum principal amount
of $13,000,000 and payable to the order of the Lender (the "Note").
All indebtedness of the Borrower to the Lender is secured pursuant to the
terms of the Credit Agreement and all other Security Documents as defined
therein (collectively, the "Security Documents").
The Borrower has requested that certain amendments be made to the Credit
Agreement, which the Lender is willing to make pursuant to the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and of the mutual covenants
and agreements herein contained, it is agreed as follows:
1. Terms used in this Amendment which are defined in the Credit Agreement
shall have the same meanings as defined therein, unless otherwise defined
herein.
2. A. The following definitions set forth in Section 1.1 of the Credit
Agreement are hereby amended as follows or to read as follows, as the case may
be:
"BORROWING BASE" means, at any time and subject to change from time to
time in the Lender's sole discretion, the lesser of
(a) the Commitment, or
(b) the sum of
(i) eighty five percent (85%) of Eligible Accounts, plus
(ii) (I) for the period from October 10, 1997 until and
including April 10, 1998 the sum of (1) seventy five percent
(75%) of the value of Eligible Cigarette Inventory up to
$4,750,000, plus (2) one hundred percent (100%) of the value of
Eligible Cigarette Inventory in excess of $4,750,000 (provided,
that the maximum amount which may be advanced against Eligible
Cigarette Inventory at the 100% advance rate shall be limited
to $10,000,000), and (II) after April 10, 1998, seventy five
percent (75%) of the value of Eligible Cigarette Inventory,
plus
(iii) fifty percent (50%) of the value of Other Eligible
Inventory.
"COLLATERAL" is amended to add the phrase "Investment Property," after
the word "Inventory" and before the word "and".
"COMMITMENT" means (unless said amount is reduced pursuant to Section
2.4(b) hereof; in which event it means the amount to which said amount
is reduced), $25,000,000 until and including April 10, 1998, and
$15,000,000 and after April 10, 1998, provided, however, that subject
to the other terms and conditions contained herein and so long as no
Default or Event of Default has occurred, the Borrower may on or after
May 1, 1998, increase such amount in excess of $15,000,000 but in no
event in excess of $18,000,000, upon written notice to the Lender and
provided further, however, that such increase shall be subject to the
condition that such amount may only be increased twice during any
fiscal year of the Borrower for, in each case, a maximum period of up
to ninety (90) consecutive calendar days and at the end of any such
increase, the amount of the Commitment shall return to $15,000,000."
"NOTE" means that certain Second Amended and Restated Revolving Note
dated effective as of October 10, 1997 executed by the Borrower and
payable to the order of the Lender in the original principal amount of
$25,000,000."
"TERMINATION DATE" means January 31, 2000."
B. The following definition is hereby added to Section 1.1 of the Loan
Agreement:
"INVESTMENT PROPERTY" means all of the Borrower's investment property
including, without limitation, securities, securities entitlements,
financial assets and certificates of deposit of the Borrower and all
funds of the Borrower on deposit with and all property in the
possession of the Lender or any depository institution, each whether
now owned or hereafter acquired."
C. Section 2.2 of the Credit Agreement is hereby amended to delete the
third sentence thereof.
D. The second sentence of Section 2.5 of the Credit Agreement is hereby
amended in its entirety to read as follows:
"Without limiting the generality of the foregoing, (i) as of April 10,
1998, the "Commitment" shall automatically reduce from $25,000,000 to
$15,000,000 and the Borrower shall immediately prepay the Advances to
the extent necessary to reduce the sum of the outstanding principal
balance of the Advances to the Borrowing Base, and (ii) at the end of
any period for which the Commitment has been increased from
$15,000,000 to $18,000,000, the Borrower shall immediately prepay the
Advances to the extent necessary to reduce the sum of the outstanding
principal balance of the Advances to the Borrowing Base."
E. Section 2.11(a) of the Credit Agreement is hereby amended in its
entirety to read as follows:
"(a) The Borrower agrees to pay the Lender a commitment fee at the
rate of one-quarter of one percent (.25%) per annum on the average
daily unused amount of the Commitment from the date hereof to and
including the date on which such facility is terminated, due and
payable monthly in arrears on the first day of each month occurring on
or after the date hereof, provided that any such commitment fee
remaining unpaid upon termination of the Credit Facility or
acceleration of the Note by the Lender pursuant to Section 8.2 hereof
shall be due and payable on the date of such termination or
acceleration. Such fee shall be calculated on the basis of actual
days elapsed in 360 day year."
F. Section 6.12 of the Credit Agreement is hereby amended in its entirety
to read as follows:
"Section 6.12 FIXED CHARGE COVERAGE RATIO. The Borrower will at all
times maintain (exclusive of any Subsidiaries or Affiliates unless the
Lender specifically consents in writing to their inclusion in such
calculation), a Fixed Charge Coverage Ratio (calculated monthly using
the average of the preceding 12 months actual results) of at least 1.1
to 1.0 until and including January 31, 1998, and at least 1.15 to 1.0
from February 1, 1998 until and including January 31, 1999; and 1.2 to
1.0 thereafter."
G. Section 6.13 is hereby amended in its entirety to read as follows:
"Section 6.13 INTEREST COVERAGE RATIO. The Borrower will at all times
maintain (exclusive of any Subsidiaries or Affiliates unless the
Lender specifically consents in writing to their inclusion in such
calculation), an Interest Coverage Ratio (calculated monthly using
the average of the preceding 12 months actual results) of at least 1.5
to 1.0."
H. Section 6.15 is hereby amended in its entirety to read as follows:
"Section 6.15 MINIMUM NET INCOME. The Borrower will at all times
maintain (exclusive of any Subsidiaries or Affiliates unless the
Lender specifically consents in writing to their inclusion in such
calculation), Net Income calculated as of the last day of each fiscal
year of the Borrower of at least $1,000,000."
I. Section 7.10 of the Credit Agreement is hereby amended in its entirety
to read as follows:
"Section 7.10 CAPITAL EXPENDITURES. The Borrower will not make or
contract to make Capital Expenditures in excess of $1,250,000 in the
aggregate during any fiscal year, whether such Capital Expenditures
are payable currently or in the future; provided, however, that in
addition to said $1,250,000 limit, the Borrower may incur up to an
additional $600,000 in Capital Expenditures so long as such additional
Capital Expenditures consist of fixtures and improvements permanently
affixed to the real property upon which the Borrower's Bismarck, North
Dakota facility is located (and not including any equipment or other
capital assets to be located in such premises but not permanently
affixed therto)."
3. Except as explicitly amended by this Amendment, all of the terms and
conditions of the Credit Agreement shall remain in full force and effect and
shall apply to any advance thereunder.
4. The Lender hereby consents to the acquisition by the Borrower of certain
of the assets of Marcus Distributors, Inc. pursuant to that certain agreement
of sale and purchase dated as of September 6, 1997.
5. This Amendment shall be effective upon receipt by the Lender of an
executed original hereof, together with each of the following, each in
substance and form acceptable to the Lender in its sole discretion:
(a) The second amended and restated revolving note duly executed on behalf
of the Borrower (the "Replacement Note").
(b) Certificate of the Secretary of the Borrower certifying as to (i) the
resolutions of the board of directors of the Borrower approving the
execution and delivery of this Amendment, the Replacement Note and all
prior amendments (ii) the fact that the Articles of Incorporation and
Bylaws of the Borrower, which were certified and delivered to the Lender
pursuant to the Certificate of the Borrower's Secretary dated as of July
25, 1994 in connection with the execution and delivery of the Credit
Agreement continue in full force and effect and have not been amended or
otherwise modified except as set forth in the Certificate to be delivered,
and (iii) certifying that the officers and agents of the Borrower who have
been certified to the Lender, pursuant to the Certificate of the Borrower's
Secretary dated as of July 25, 1994, as being authorized to sign and to act
on behalf of the Borrower continue to be so authorized or setting forth the
sample signatures of each of the officers and agents of the Borrower
authorized to execute and deliver this Amendment and all other documents,
agreements and certificates on behalf of the Borrower.
(c) A UCC-1 financing statement duly executed by the Borrower for filing
in St. Louis County, Missouri.
(d) UCC-3 amendments duly executed by the Borrower amending the existing
financing statements filed in Green County, Missouri, and with the
Secretaries of State of the States of Nebraska, Missouri, Kansas, North
Dakota, South Dakota, and Wyoming, which amendments will amend the
description of the collateral covered by the prior filings to include
Investment Property.
(e) A landlord's disclaimer and consent agreement, duly executed by the
landlord of the Borrower's new facility at 0000 Xxxxx Xxxxxxxxx Xxxxxxxxx,
Xx. Xxxxx, Xxxxxxxx, 00000, together with a copy of the lease for such
premises.
(f) An acknowledgment of security interest and waiver of liens (warehouse)
duly executed by the warehousemen of the Borrower's new bonded warehouse
facility at 0000 X Xxxxxx, Xxxxx, XX together with the consent of the
Borrower thereto.
6. The Borrower hereby represents and warrants to the Lender as follows:
(a) The Borrower has requisite power and authority to execute this
Amendment and the Replacement Note and to perform all of it obligations
hereunder, and this Amendment and the Replacement Note have been duly
executed and delivered by the Borrower and constitute the legal, valid and
binding obligations of the Borrower, enforceable in accordance with their
respective terms.
(b) The execution, delivery and performance by the Borrower of this
Amendment and the Replacement Note have been duly authorized by all
necessary corporate action and do not (i) require any authorization,
consent or approval by any governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign, (ii) violate any
provision of any law, rule or regulation or of any order, writ, injunction
or decree presently in effect, having applicability to the Borrower, or the
articles of incorporation or by-laws of the Borrower, or (iii) result in a
breach of or constitute a default under any indenture or loan or credit
agreement or any other agreement, lease or instrument to which the Borrower
is a party or by which it or its properties may be bound or affected.
(c) All of the representations and warranties contained in Article V of
the Credit Agreement are correct on and as of the date hereof as though
made on and as of such date, except to the extent that such representations
and warranties relate solely to an earlier date.
7. All references in the Credit Agreement to "this Agreement" shall be deemed
to refer to the Credit Agreement as amended hereby; and any and all references
in the Security Documents to the Credit Agreement shall be deemed to refer to
the Credit Agreement as amended hereby. Upon the satisfaction of each of the
conditions set forth in paragraph 5 hereof, the definition of "Note" and all
references thereto in the Credit Agreement and the Security Documents shall be
deemed amended to describe the Replacement Note, which Replacement Note shall
be issued by the Borrower to the Lender in replacement, renewal and amendment,
but not in repayment, of the Note.
8. The execution of this Amendment and acceptance of the Replacement Note and
any documents related hereto shall not be deemed to be a waiver of any Default
or Event of Default under the Credit Agreement or breach, default or event of
default under any Security Document or other document held by the Lender,
whether or not known to the Lender and whether or not existing on the date of
this Amendment.
9. The Borrower hereby absolutely and unconditionally releases and forever
discharges the Lender, and any and all participants, parent corporations,
subsidiary corporations, affiliated corporations, insurers, indemnitors,
successors and assigns thereof, together with all of the present and former
directors, officers, agents and employees of any of the foregoing, from any
and all claims, demands or causes of action of any kind, nature or
description, whether arising in law or equity or upon contract or tort or
under any state or federal law or otherwise, which the Borrower has had, now
has or has made claim to have against any such person for or by reason of any
act, omission, matter, cause or thing whatsoever arising from the beginning of
time to and including the date of this Amendment, whether such claims, demands
and causes of action are matured or unmatured or known or unknown.
10. The Borrower hereby reaffirms its agreement under the Credit Agreement to
pay or reimburse the Lender on demand for all costs and expenses incurred by
the Lender in connection with the Credit Agreement, the Security Documents and
all other documents contemplated thereby, including without limitation all
reasonable fees and disbursements of legal counsel. Without limiting the
generality of the foregoing, the Borrower specifically agrees to pay all fees
and disbursements of counsel to the Lender for the services performed by such
counsel in connection with the preparation of this Amendment and the documents
and instruments incidental hereto. The Borrower hereby agrees that the Lender
may, at any time or from time to time in its sole discretion and without
further authorization by the Borrower, make a loan to the Borrower under the
Credit Agreement, or apply the proceeds of any loan, for the purpose of paying
any such fees, disbursements, costs and expenses.
11. This Amendment and the Acknowledgment and Consent of Participants may be
executed in any number of counterparts, each of which when so executed and
delivered shall be deemed an original and all of which counterparts, taken
together, shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed effective as of the day and year first above written.
AMCON DISTRIBUTING COMPANY
By: Xxxxxxx X. Xxxxx
-----------------
Its: CFO
------------
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
By: Xxxxxxxx Xxxxxxx
-------------------
Its: Vice President
--------------
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed effective as of the day and year first above written.
AMCON DISTRIBUTING COMPANY
By: Xxxxxxx X. Xxxxx
----------------
Its: CFO
-----------
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
By: Xxxxxxxx Xxxxxxx
--------------------
Its: Vice President
---------------
ACKNOWLEDGMENT AND CONSENT OF PARTICIPANTS
The undersigned, Norwest Business Credit, Inc., a Minnesota corporation
("NBCI") and Norwest Bank Nebraska, National Association, a national banking
corporation ("Nebraska"), have each purchased participation interests in,
among other things, all "Loans" made under the Credit Agreement, pursuant to,
respectively, that certain Participation and Servicing Agreement (Pro Rate
Basis) dated as of November 3, 1994 by and between the Lender and NBCI, and
that certain Participation Agreement (Pro Rate Basis) dated as of November 3,
1994 by and between NBCI and Nebraska, and each hereby acknowledges the
foregoing amendments, and consents to such amendments.
NORWEST BUSINESS CREDIT, INC.
By: Xxxx X. Xxxxx
------------------
Its: Vice President
--------------
NORWEST BANK NEBRASKA, NATIONAL
ASSOCIATION
By: Xxxxx X. Xxxxx, Xx.
------------------
Its: Asst. VP
-------------
