FOURTH AMENDMENT TO AMENDED AND RESTATED AGENTED REVOLVING CREDIT AGREEMENT
Exhibit
4.5
FOURTH
AMENDMENT TO AMENDED AND RESTATED AGENTED
THIS
FOURTH AMENDMENT TO AMENDED AND RESTATED AGENTED REVOLVING CREDIT
AGREEMENT
("Amendment") is dated effective as of April 28, 2006, by and among
COLONIAL AUTO FINANCE, INC.,
an
Arkansas corporation (“Borrower”), BANK
OF ARKANSAS, N.A.,
GREAT
SOUTHERN BANK,
FIRST
STATE BANK, FIRST STATE BANK OF NORTHWEST ARKANSAS,
SOVEREIGN BANK,
and
ENTERPRISE
BANK & TRUST,
and
COMMERCE
BANK, N.A. (each
individually a “Bank” and collectively the “Banks”), and BANK
OF ARKANSAS, N.A.,
as
agent for the Banks hereunder (in such capacity the “Agent”).
RECITALS
A. Reference
is made to the Amended and Restated Agented Revolving Credit Agreement dated
as
of June 23, 2005, and amended September 30, 2005, October 31, 2005, and February
24, 2006 (as amended, the "Colonial Credit Agreement"), by and among Borrower,
the Banks party thereto, and Agent, pursuant to which a $40,000,000 Revolving
Line of Credit exists in favor of Borrower.
B. Borrower
and Banks have agreed that certain modifications shall be made to the Colonial
Credit Agreement. Terms used herein shall have the meanings given in the
Colonial Credit Agreement unless otherwise defined herein.
AGREEMENT
For
valuable consideration received, the parties agree to the
following.
1. Amendments
to Colonial Credit Agreement.
The
Colonial Credit Agreement is amended as follows.
1.1. In
Section 1.01 (Defined Terms), the definition of “Borrowing Base” is hereby
amended to evidence that the amount “$10,000,000” shall now mean and read
“$20,000,000”.
1.2. The
following new defined term is hereby added to Section 1.01 (Defined
Terms):
“’ACM
Credit Agreement’ means the Revolving Credit Agreement among Bank of Oklahoma,
N.A., ACM and TCM dated June 23, 2005, and subsequently amended from time
to
time.
1.3. Section
2.16 (Termination Fee) of the Colonial Credit Agreement is hereby amended
to
evidence that the phrase “six (6) months” shall now mean and read “nine (9)
months”.
2. Allocation
of Proceeds of Collateral.
The
undersigned hereby acknowledge and agree that in the event of a Default or
Event
of Default under the Colonial Credit Agreement and/or under the ACM Credit
Agreement, all proceeds of collateral received through a liquidation of
collateral or otherwise following such Default or Event of Default, will
be
allocated to the Banks (as defined in the Colonial Credit Agreement and the
ACM
Credit Agreement) on a Pro Rata Basis. For purposes of this Section 2, the
term
“Pro Rata Basis” shall mean the proportion which each Bank’s Aggregate
Commitment bears to the total amount of all Banks’ Aggregate Commitments at the
time of determination thereof. “Aggregate Commitment” shall mean the total
commitment of a Bank under the Colonial Credit Agreement and/or the ACM Credit
Agreement.
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3. Conditions
Precedent.
The
obligations of the Bank to perform under the Colonial Credit Agreement, as
amended hereby, are subject to the satisfaction of the following.
3.1. Borrower
shall execute and deliver this Amendment.
3.2. Borrower
shall execute and deliver any other instruments, documents and/or agreements
reasonably required by Bank in connection herewith.
3.3. No
Default or Event of Default exists or will result from the execution and
delivery of this Amendment.
4. Representations
and Warranties.
Borrower hereby ratifies and confirms all representations and warranties
set
forth in the Colonial Credit Agreement, and all other Loan Documents, other
than
any representation or warranty that relates to a specific prior date and
except
to the extent that the Bank has been notified in writing by the Borrower
that
any representation or warranty is not correct and the Bank has explicitly
waived
in writing compliance with such representation or warranty.
5. Ratification.
Borrower hereby ratifies and confirms the Colonial Credit Agreement, and
all
instruments, documents, and agreements executed by Borrower in connection
therewith, and confirms that no Default exists thereunder.
6. Ratification
and Amendment of Subordination Agreements.
ACM and
ACM-Texas each hereby ratifies and confirms its respective Subordination
Agreement, and confirms that it remains in full force and effect.
7. Governing
Law.
This
Agreement and the Note shall be governed by, and construed in accordance
with,
the laws of the State of Arkansas.
8. Multiple
Counterparts.
This
Amendment may be executed in any number of counterparts, and by different
parties to this Amendment in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together
shall
constitute one and the same agreement.
9. Costs,
Expenses and Fees.
Borrower agrees to pay all costs; expenses and fees incurred by Banks in
connection herewith, including without limitation the reasonable attorney
fees
of Riggs, Abney, Neal, Turpen, Orbison and Xxxxx.
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“BORROWER”
COLONIAL
AUTO FINANCE, INC.,
an Arkansas corporation
By
/s/ X.X. Xxxxxxx, III
X. X. Xxxxxxx, III, President
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“SUBORDINATING
PARTIES”
AMERICA’S
CAR-MART, INC.,
a
Texas corporation, formerly known as Crown Group, Inc.
By
/s/ Xxxx Xxxxxxxx
Xxxx Xxxxxxxx, Vice President
AMERICA’S
CAR MART, INC.,
an
Arkansas corporation
By
/s/ Xxxx Xxxxxxxx
Xxxx Xxxxxxxx, Vice President
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| “BANKS” | |
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Revolving
Credit Commitment:
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BANK
OF ARKANSAS, N.A.
|
|
$10,000,000
|
|
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Principal
Office and Lending Office:
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By
/s/ Xxxxxxx X. Xxxx
|
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P.O.
Box 1407
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Xxxxxxx X. Xxxx, President & CEO
|
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Xxxxxxxxxxxx,
XX 00000-0000
|
|
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Attention:
Xxxxxxx X. Xxxx
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|
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xxxxx@xxxx.xxx
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[Signature
Page to Fourth Amendment to Amended and Restated Agented Revolving
Colonial
Credit Agreement dated April 28, 2006]
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Revolving
Credit Commitment:
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SOVEREIGN
BANK
|
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$3,500,000
|
|
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Principal
Office and Lending Office:
|
|
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0000
Xxxxx Xxxxxxx 000, Xxxxx 000
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|
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Xxxxxx,
Xxxxx 00000
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By
/s/ Xxxx Xxxxx
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Attention:
Xxxx Xxxxx
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Xxxx Xxxxx, Area President
|
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Email:
xxxxxx@xxxxxxx.xxx
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[Signature
Page to Fourth Amendment to Amended and Restated Agented Revolving
Colonial
Credit Agreement dated April 28, 2006]
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|
Revolving
Credit Commitment:
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GREAT
SOUTHERN BANK
|
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$5,000,000
|
|
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Principal
Office and Lending Office:
|
|
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0000
X. Xxxxxxxxxxx
|
|
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Xxxxxxxxxxx,
XX 00000
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By
/s/ Xxx Xxxxxx
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Attn:
Xxx Xxxxxx
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Xxx Xxxxxx, Vice President
|
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xxxxxx@xxxxxxxxxxxxxxxxx.xxx
|
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[Signature
Page to Fourth Amendment to Amended and Restated Agented Revolving
Colonial
Credit Agreement dated April 28, 2006]
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Revolving
Credit Commitment:
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FIRST
STATE BANK OF NORTHWEST ARKANSAS
|
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$1,500,000
|
|
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Principal
Office and Lending Office:
|
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X.X.
Xxx 0000
|
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Xxxxxxxxxxxx,
Xxxxxxxx 00000
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By
/s/ Xxxxxx Xxxxxxxx
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Attn:
Xxxxxx Xxxxxxxx
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Xxxxxx Xxxxxxxx, President/Chief Executive
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E-mail:
xxxxxxxxx@xxxxxx.xxx
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Officer
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[Signature
Page to Fourth Amendment to Amended and Restated Agented Revolving
Colonial
Credit Agreement dated April 28, 2006]
7
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Revolving
Credit Commitment:
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FIRST
STATE BANK
|
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$6,000,000
|
|
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Principal
Office and Lending Office:
|
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000
Xxxxxxxx Xxxxxx
|
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Xxxxxx,
XX 00000
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By
/s/ Xxxxxxx Xxxxx
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Attention:
Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx, Senior Vice President
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xxxxxx@xxxxxxx.xxx
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[Signature
Page to Fourth Amendment to Amended and Restated Agented Revolving
Colonial
Credit Agreement dated April 28, 2006]
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Revolving
Credit Commitment:
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ENTERPRISE
BANK & TRUST
|
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$6,000,000
|
|
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Principal
Office and Lending Office:
|
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00000
Xxxxxxx Xxx.
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Xxxxxxxx
Xxxx, XX 00000
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By
/s/ Xxxxx X. Xxxxxx
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Attention:
Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, President
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e-mail:
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[Signature
Page to Fourth Amendment to Amended and Restated Agented Revolving
Colonial
Credit Agreement dated April 28, 2006]
9
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Revolving
Credit Commitment:
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COMMERCE
BANK, N.A.
|
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$8,000,000
|
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Principal
Office and Lending Office:
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0000
Xxxxxx Xx., XX00-0
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Xxxxxx
Xxxx, XX 00000
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Attention:
Xxxxx Xxxxx
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By
/s/ R. Xxxxx Xxxxx, Xx.
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mail:
xxxxx.xxxxx@xxxxxxxxxxxx.xxx
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R. Xxxxx Xxxxx, Xx., Vice President
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Regional Banking
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By
execution of this Amendment, Commerce Bank, N.A. assumes all obligations
as a
Bank under the Colonial Credit Agreement to the extent of pro-rata
share.
[Signature
Page to Fourth Amendment to Amended and Restated Agented Revolving
Colonial
Credit Agreement dated April 28, 2006]
10
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“AGENT”
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BANK
OF ARKANSAS, N.A.
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By
/s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx, President &
CEO
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[Signature
Page to Fourth Amendment to Amended and Restated Agented Revolving
Colonial
Credit Agreement dated April 28, 2006]
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JOINDER
OF BANK OF OKLAHOMA, N.A.
Although
not a party to this Amendment, the undersigned executes this Amendment to
acknowledge its understanding of and agreement to comply with the terms and
conditions of Section 2 hereof related to Allocation of Proceeds of
Collateral.
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BANK
OF OKLAHOMA, N.A.
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By
/s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx, Vice President
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[Signature
Page to Fourth Amendment to Amended and Restated Agented Revolving
Colonial
Credit Agreement dated April 28, 2006]
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