SIXTH AMENDMENT TO AMENDED AND RESTATED AGENTED REVOLVING CREDIT AGREEMENT
Exhibit
4.1
SIXTH
AMENDMENT TO AMENDED AND RESTATED AGENTED
REVOLVING
CREDIT AGREEMENT
THIS SIXTH AMENDMENT TO AMENDED AND
RESTATED AGENTED REVOLVING CREDIT AGREEMENT ("Amendment") is dated
effective as of May 16, 2008, 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, 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, February 24,
2006, April 28, 2006, and December 31, 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 to include provisions related to rate management
transactions. 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, the defined term “Borrowing Base” is hereby deleted and replaced
with the following:
“’Borrowing
Base” means, as of the date of determination, the remainder of (a) the amount
determined by multiplying the Advance Rate by the Net Eligible Contract Payments
then outstanding, minus
(b) $10,000,000 plus
the outstanding balance of the $10,000,000 Promissory Note payable by America’s
Car Mart, Inc. and Texas Car-Mart, Inc. to Bank of Oklahoma plus
$1,800,000.”
1.2. In
Section 1.01, the defined term “Obligations” is hereby deleted and replaced with
the following:
“’Obligations’
means, collectively (i) all present and future loans, advances, liabilities,
obligations, covenants, duties, and debts owing by the Borrower to the Agent
and/or any Bank arising under or pursuant to this Agreement or any of the other
Loan Documents, whether or not evidenced by any note, or other instrument or
document, whether arising from an extension of credit, opening of a letter of
credit, acceptance, loan, guaranty, indemnification or otherwise, whether direct
or indirect (including, without limitation, those acquired by assignment from
others, and any participation by the Agent and/or any Bank in the Borrower’s
debts owing to others), absolute or contingent, due or to become due, primary or
secondary, as principal or guarantor, and including, without limitation, all
principal, interest, charges, expenses, fees, attorneys’ fees, filing fees and
any other sums chargeable to the Borrower hereunder or under any of the other
Loan Documents, and (ii) all Rate Management Obligations owing to one or more
Banks.”
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1.3. The
following new defined terms are hereby added to Section 1.01:
“’Rate
Management Obligations’ of a Person means any and all obligations of such
Person, whether absolute or contingent and howsoever and whensoever created,
arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor), under (i) any and all Rate
Management Transactions, and (ii) any and all cancellations, buy backs,
reversals, terminations or assignments of any Rate Management
Transactions.”
“’Rate
Management Transaction’ means any transaction (including an agreement with
respect thereto) now existing or hereafter entered by the Borrower which is a
rate swap, 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, forward 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) or
any combination thereof, whether linked to one or more interest rates, foreign
currencies, commodity prices, equity prices or other financial
measures.”
1.4. A
new subparagraph (6) is hereby added to Section 6.02 (Debt), as
follows:
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"(6) Debt
arising under Rate Management Transactions related to the
Loan.”
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1.5. A
new subparagraph (16) is hereby added to Section 8.01 (Events of Default), as
follows:
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"(16) Nonpayment
by the Borrower or any Subsidiary of any Rate Management Obligation when
due or the breach by the Borrower or any Subsidiary of any term, provision
or condition contained in any Rate Management Transaction or any
transaction of the type described in the definition of "Rate Management
Transaction," whether or not any Bank or Affiliate of a Bank is a party
thereto.”
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2.
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.
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2.1.
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Borrower
shall execute and deliver this
Amendment.
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2.2. Borrower
shall execute and deliver any other instruments, documents and/or agreements
reasonably required by Bank in connection herewith.
2.4. No
Default or Event of Default exists or will result from the execution and
delivery of this Amendment.
3.
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.
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4.
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.
5.
Ratification of Security
Agreements. Borrower and each Guarantor 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.
6.
Ratification of
Guaranties. Each Guarantor hereby (i) ratifies and confirms
its respective Guaranty Agreement, (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.
7.
Ratification 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 and, further, acknowledges and agrees that
the Superior Obligations (as defined therein) shall include all Rate Management
Obligations of Borrower, as defined herein.
8.
Governing
Law. This Agreement and the Note shall be governed by, and
construed in accordance with, the laws of the State of Arkansas.
9.
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.
10. 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
pages follow.]
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“BORROWER”
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COLONIAL AUTO FINANCE,
INC., an Arkansas corporation
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By
/s/ Xxxx Xxxxxxxxx
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Xxxx
Xxxxxxxxx, President
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“GUARANTORS”
and
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“SUBORDINATING
PARTIES”
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AMERICA’S CAR-MART,
INC., a Texas corporation, formerly known as Crown Group,
Inc.
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By
/s/ Xxxx Xxxxxxxx
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Xxxx
Xxxxxxxx, Vice President
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AMERICA’S CAR MART,
INC.,
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an
Arkansas corporation
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By
/s/ Xxxx Xxxxxxxx
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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.
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$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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xxxxx@xxxxxxxxxxxxxx.xxx
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[Signature
Page to Sixth Amendment to Amended and Restated Agented Revolving
Credit
Agreement dated May 16, 2008]
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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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Xxxxxx,
Xxxxx 00000
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By
/s/ Xxxx Xxxxxxxx
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Attention:
Xxxx Xxxxxxxx
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Xxxx
Xxxxxxxx, Area President
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Area
President
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Email:
xxxxxxxxx@xxxxxxx.xxx
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[Signature
Page to Sixth Amendment to Amended and Restated Agented Revolving
Credit
Agreement dated May 16, 2008]
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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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xxxxxxx@xxxxxxxxxxxxxxxxx.xxx
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[Signature
Page to Sixth Amendment to Amended and Restated Agented Revolving
Credit
Agreement dated May 16, 2008]
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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
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/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 Sixth Amendment to Amended and Restated Agented Revolving
Credit
Agreement dated May 16, 2008]
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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
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/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 Sixth Amendment to Amended and Restated Agented Revolving
Credit
Agreement dated May 16, 2008]
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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
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/s/
Xxxxx X. Xxxxxx
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Attention:
Xxxxx X. Xxxxxx
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Xxxxx
X. Xxxxxx, President
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[Signature
Page to Sixth Amendment to Amended and Restated Agented Revolving
Credit
Agreement dated May 16, 2008]
10
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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:
Xxxx Area
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By
/s/ Xxxx Area
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Xxxx
Area, Vice President
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Regional
Banking
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[Signature
Page to Sixth Amendment to Amended and Restated Agented Revolving
Credit
Agreement dated May 16, 2008]
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“AGENT”
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BANK
OF ARKANSAS, N.A.
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By
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/s/
Xxxxxxx X. Xxxx
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Xxxxxxx
X. Xxxx, President & CEO
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[Signature
Page to Sixth Amendment to Amended and Restated Agented Revolving
Credit
Agreement dated May 16, 2008]
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