SIXTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
Exhibit
4.8
SIXTH
AMENDMENT TO REVOLVING CREDIT AGREEMENT
THIS SIXTH
AMENDMENT TO REVOLVING CREDIT AGREEMENT ("Amendment") is dated effective as of
December 15, 2008 (“Effective Date”), by and among AMERICA’S CAR MART, INC., an
Arkansas corporation and TEXAS CAR-MART, INC., a Texas corporation (separately
and collectively, “Borrower”) and BANK OF OKLAHOMA, N.A. (“Bank”).
RECITALS
A. Reference
is made to the Revolving Credit Agreement dated as of June 23, 2005, and amended
effective June 23, 2005, August 19, 2005, September 30, 2005, April 28, 2006,
December 31, 2006 and May 16, 2008 (as amended, the "ACM Agreement"), by and
among Borrower and Bank, pursuant to which currently exists a $10,000,000
Revolving Line ("RLOC") of Credit and a $10,000,000 Term Loan ("Term Loan") in
favor of Borrower.
B. Borrower
and Bank hereby intend to make certain changes to the ACM Credit Agreement,
including without limitation an extension of the commitment as to and maturity
date of the RLOC. Terms used herein shall have the meanings given in
the ACM Credit Agreement unless otherwise defined herein.
AGREEMENT
For
valuable consideration received, the parties agree to the
following.
1. Amendments to ACM
Agreement. The ACM Agreement is amended as follows.
1.1 In
Section 1.01 (Defined Terms), the definition of "Termination Date" is amended to
evidence that the Termination Date is hereby extended to April 30,
2010.
1.2. The
defined term "ACM-Texas Sub-Debt" is hereby amended to evidence that the amount
"$5,000,000" shall now mean and read "$8,000,000."
1.3. Section
2.05 (Unused Portion Fee) is hereby deleted; provided that any
amounts accrued through the Effective Date shall be paid by Borrower to Agent
upon the execution hereof.
1.4. Section
2.15 (Audit Fees) is deleted and replaced wit the following:
"Section 2.15. Audit
Fees. To the extent that Bank’s auditors reasonably determine that
any amounts reported by the Borrower are incorrect (including amounts on a
Borrowing Base Certificate, pursuant to the Financial Covenants in Article 7, or
elsewhere pursuant to the loan documents), then the adjusted amount(s)
reasonably determined by the Bank’s auditors shall be deemed to be the correct
amount(s) until such time, if ever, that the Borrower shall provide convincing
evidence to the Bank to the contrary. The Borrower agrees to pay to
the Bank (i) all costs and fees reasonably incurred by the Bank's internal
auditors in connection with quarterly audits of the Borrower performed by such
auditors and (ii) all costs and fees of any third party auditors and/or
representatives retained by Bank, during the term of this Agreement; provided that, prior
to the occurrence of an Event of Default, the Bank shall not be entitled to
reimbursement for any such costs and fees under (i) incurred in connection with
audits in excess of $5,000 plus any other costs and fees relating to such audit
during any year, including costs and fees incurred by third party or external
auditors engaged by the Bank on its behalf (with each year beginning on the
Closing Date or an anniversary date thereof and ending twelve (12) months
thereafter) of this Agreement. At the discretion of the Bank, a
pro-rata portion of the audit fee may be payable in arrears on the first day of
each month commencing with the month immediately following the Closing Date
otherwise will be collected by the Bank at its
discretion. Notwithstanding the foregoing, upon the occurrence of any
Event of Default, the Borrower shall pay all of the Bank's costs incurred in
connection with the verification, audit, and inspection of the Collateral
without regard to the foregoing limitations.”
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1.5. A
new Section 2.17 is added as follows:
"Section 2.17. Facility
Fee. The Borrower agrees to pay to the Bank an annual Facility Fee
equal to $12,500 payable on the last day of each fiscal quarter, commencing
December 31, 2008, so long as this Agreement is in effect."
1.6. Section
6.11 (New Car Lots) is amended to replace the number “ten (10)” to now mean and
read “fifteen (15)” with respect to new car lots opened annually.
1.7. Section
7.01 (Leverage Ratio) is amended to read as follows:
“Section
7.01. Leverage Ratio. At all time, calculated as of the last day of
each month, maintain a ratio of Funded Debt to EBITDA for the trailing twelve
(12) month period of no greater than 2.75 to 1.00.”
1.8. Section
7.03 (minimum Tangible net Worth) is amended to read as follows:
“Section
7.03. Minimum Tangible Net Worth. At all time, calculated
as of the last day of each month, maintain a minimum Adjusted Tangible Net Worth
as of the last day of each fiscal quarter equal to or greater than the sum of:
(i) the greater of (A) eighty-five percent (85%)of the Adjusted Tangible net
Worth as of October 31, 2008, and (B) $128,000,000 plus (ii) seventy-five
percent (75%) of positive quarterly Net Income; and (iii) one hundred percent
(100%) of any equity issuances.”
1.9. Section
8.01 (Events of Default) is amended to add the following
subsection:
"(14) The occurrence of any
default under (i) any other loan or other agreement between Borrower or
Guarantor and Lender, and/or (ii) the loan facility between Colonial Auto
Finance, Inc., an Arkansas corporation and Lender established June 23, 2005 and
all subsequent modifications or increases."
2. Conditions
Precedent. The obligations of the Bank to perform under the
ACM Agreement, as amended hereby, are subject to satisfaction of the
following.
2.1
|
Borrower
and all other parties hereto shall execute and deliver this Amendment and
the $10,000,000 Promissory Note attached as Schedule "4.1"
hereto.
|
2.2
|
No
Default or Event of Default shall exist or result from the execution and
delivery of this Amendment.
|
2
3. Representations and
Warranties. Borrower hereby ratifies and confirms all
representations and warranties set forth in the ACM 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.
1. Ratification. Borrower
hereby ratifies and confirms the ACM Credit Agreement, and all other
instruments, documents, and agreements executed in connection therewith and
further confirm that no Default exists thereunder.
2. Ratification of Security
Agreements. Each Borrower and Colonial hereby (i) ratifies and
confirms its respective Security Agreement dated June 23, 2005, (ii) confirms
that no Default exists thereunder, and (iii) acknowledges and agrees that the
obligations secured thereunder shall include all Rate Management Obligations of
Borrower, as defined herein.
3. Ratification of
Guaranties. ACM-Texas and Colonial each hereby (i) ratifies
and confirms its respective Guaranty dated June 23, 2005, (ii) confirms that no
Default exists thereunder, and (iii) acknowledges and agrees that the
obligations guaranteed thereunder shall include all Rate Management Obligations
of Borrower, as defined herein.
4. Ratification of
Subordination Agreements. ACM-Texas and Colonial each hereby
(i) ratifies and confirms its respective Subordination Agreement dated June 23,
2005, (ii) confirms that no Default exists thereunder, and (iii) acknowledges
and agrees that the Superior Obligations (as defined therein) shall include all
Rate Management Obligations of Borrower, as defined herein.
5. Governing
Law. This Agreement and the Notes shall be governed by, and
construed in accordance with, the laws of the State of Arkansas.
6. Release of
Lender. The Borrower hereby releases the Lender from any and
all claims, known or unknown, which may have arisen out of or in connection with
the ACM Credit Agreement on or prior to the Effective Date.
7. 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.
8. 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.
[Signature
page follows]
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“BORROWER”
AMERICA’S
CAR MART, INC., an Arkansas corporation
By__/s/
Xxxxxxx X. Williams___
Xxxxxxx
X. Xxxxxxxx, Vice President
TEXAS
CAR-MART, INC., a Texas
corporation
By__/s/
Xxxxxxx X. Williams_
Xxxxxxx
X. Xxxxxxxx, Vice President
"GUARANTORS"
and “SUBORDINATING PARTIES”
AMERICA’S
CAR-MART, INC., a Texas corporation, formerly known as Crown Group,
Inc.
By_/s/
Xxxxxxx X. Xxxxxxxx
Xxxxxxx
X. Xxxxxxxx, Vice President
COLONIAL
AUTO FINANCE, INC.,
an
Arkansas corporation
By__/s/
Xxxxxxx X. Henderson_
Xxxxxxx
X. Xxxxxxxxx, President
“BANK”
BANK OF OKLAHOMA, N.A.
By__/s/
Xxxxxxx X. Dunn_
Xxxxxxx
X. Xxxx, Vice President
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STATE OF
ARKANSAS )
)
ss: ACKNOWLEDGMENT
COUNTY OF
BENTON )
On this
day, before me, the undersigned, a Notary Public, within and for the County and
State aforesaid, duly qualified, commissioned and acting, the within named XXXXXXX X. XXXXXXXX, to me
personally well known, and stated and acknowledged that he was duly authorized
in that capacity to execute the foregoing instrument for and in the name and
behalf of AMERICA’S
CAR MART, INC., an Arkansas corporation, TEXAS CAR-MART, INC., a Texas
corporation, and AMERICA’S CAR-MART, INC., a Texas corporation, formerly known
as Crown Group, Inc., and further stated and acknowledged that he had so signed,
executed and delivered said foregoing instrument for the consideration and
purposes therein mentioned and set forth.
IN
TESTIMONY WHEREOF, I have hereunto set my hand and official seal this 12th day
of December, 2008.
Xxxxxx
Xxxxxx
Notary
Public
My
commission expires:
__February
28, 0000
(X X X
X)
XXXXX XX
XXXXXXXX )
)
ss: ACKNOWLEDGMENT
COUNTY OF
BENTON )
On this
day, before me, the undersigned, a Notary Public, within and for the County and
State aforesaid, duly qualified, commissioned and acting, the within named XXXXXXX X. XXXXXXXXX, to me
personally well known, and stated and acknowledged that he was duly authorized
in that capacity to execute the foregoing instrument for and in the name and
behalf of COLONIAL AUTO FINANCE, INC., an Arkansas corporation, and
further stated and acknowledged that he had so signed, executed and delivered
said foregoing instrument for the consideration and purposes therein mentioned
and set forth.
IN
TESTIMONY WHEREOF, I have hereunto set my hand and official seal this 12th day
of December, 2008.
Xxxxxx
Xxxxxx
Notary
Public
My
commission expires:
_February
28, 2017
(S E A
L)
5
Schedule
"4.1"
($10,000,000
Line Note)
6