FIRST AMENDMENT TO AMENDED AND RESTATED AGENTED REVOLVING CREDIT AGREEMENT
EXHIBIT
4.1
FIRST
AMENDMENT TO AMENDED AND RESTATED AGENTED
REVOLVING
CREDIT AGREEMENT
THIS
FIRST AMENDMENT TO AMENDED AND RESTATED AGENTED REVOLVING CREDIT
AGREEMENT
("Amendment") is dated effective as of September 30, 2005, by and
among
COLONIAL AUTO FINANCE, INC.,
an
Arkansas corporation (“Borrower”), BANK
OF ARKANSAS, N.A.,
GREAT
SOUTHERN BANK,
FIRST
STATE BANK, BANK OF OKLAHOMA, N.A.,
FIRST
STATE BANK OF NORTHWEST ARKANSAS and
SOVEREIGN BANK,
and one
or more additional lenders to be determined at a later date (“Additional
Lender”) (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 ("Credit Agreement"), by and among Borrower, Bank (as defined
in the Credit Agreement), Agent and Bank of Oklahoma, N.A. as Paying Agent
pursuant to which a $34,500,000 Revolving Line of Credit was established in
favor of Borrower.
B.
Borrower
has requested that Bank extend the maturity date of the $34,500,000 Revolving
Line of Credit; and Bank has agreed to accommodate Borrower’s request, subject
to the terms and conditions hereof. Terms used herein shall have the meanings
given in the Credit Agreement unless otherwise defined herein.
AGREEMENT
For
valuable consideration received, the parties agree to the
following.
1. Amendments
to Credit Agreement.
The
Credit Agreement is amended as follows.
1.1. The
Credit Agreement is hereby amended to evidence that effective as of the date
hereof, Liberty Bank of Arkansas and Arvest Bank (“Retiring Banks”) shall no
longer be included as Banks under the Credit Agreement, and First State Bank
of
Northwest Arkansas and Sovereign Bank (“New Banks”) shall be added as Banks
under the Credit Agreement. Retiring Banks shall no longer be bound by the
terms
of the Credit Agreement nor entitled to the benefits of the Credit Agreement,
except as to matters which arose or Revolving Credit Loans which were advanced
prior to the date hereof, and shall not receive payments of principal, interest
or fees accrued or paid by the Borrower under the Credit Agreement, except
as to
payments or fees accrued or paid prior to the date hereof. Each New Bank is
hereby made a party to the Credit Agreement, effective as of the date hereof
and
upon execution of a Signature Page hereto, and thereafter shall be included
as a
Bank under the terms of the Credit Agreement, and shall be bound by the terms
of
the Credit Agreement and entitled to all benefits of the Credit Agreement as
though such New Bank had signed on the date of the Credit Agreement; provided,
however, that New Banks shall not receive payments of principal, interest or
fees accrued or paid by Borrower under the Credit Agreement prior to the date
hereof.
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1.2. The
Credit Agreement is hereby amended to evidence that effective as of the date
hereof, Bank of Oklahoma, N.A. shall no longer serve as Paying Agent. All
references throughout the Credit Agreement and other Loan Documents to “Paying
Agent” shall now mean and read “Agent”.
1.3. In
Section 1.01 (Defined Terms), the definition of “Borrowing Base” is amended to
evidence that the amount “$5,000,000” is hereby deleted and replaced with the
amount “$10,000,000”.
1.4. The
Borrowing Base Certificate attached to the Credit Agreement as Exhibit
“A”
is
hereby deleted and replaced with the Borrowing Base Certificate attached as
Schedule
“1.4”
hereto.
1.5. In
Section 1.01 (Defined Terms), the definition of “Interest Period” is hereby
deleted and replaced with the following:
“Interest
Period” means, with respect to any LIBOR Loan, the period commencing on the date
such Loan is made and ending, as the Borrower may select, pursuant to
Section
2.05,
on the
numerically corresponding day in the first, second, third, sixth, ninth, or
twelfth calendar month thereafter, except that each such Interest Period that
commences on the last day of a calendar month (or on any day for which there
is
no numerically corresponding day in the appropriate subsequent calendar month)
shall end on the last day of the appropriate subsequent calendar month;
provided, however, that no Interest Period may extend beyond the Termination
Date.”
1.6. The
Credit Agreement is hereby amended to evidence that, effective as of the date
hereof, the Revolving Credit Commitment of each Bank shall be the amount
opposite such Bank’s name on its signature page hereto.
1.7. 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,
2009.
1.8. Section
2.05 (Interest) is amended to amended
to evidence that the table contained therein is hereby deleted and replaced
with
the following:
1.9.
Borrower’s
Ratio of
Funded
Debt to EBITDA
|
Adjusted
LIBOR
Rate
|
Adjusted
Prime
Rate
|
<
1.75
>
1.75 and < 2.0
> 2.0
and < 2.25
> 2.25
|
LIBOR
Rate plus 2.75%
LIBOR
Rate plus 3.0%
LIBOR
Rate plus 3.25%
LIBOR
Rate plus 3.5%
|
Prime
Rate minus .25%
Prime
Rate plus 0.0%
Prime
Rate plus .25%
Prime
Rate plus .5%
|
1.10. Section
2.05 (Interest) is hereby amended to evidence the addition the following
paragraph:
“The
Adjusted LIBOR Rate and Adjusted Prime Rate shall be recalculated on not less
than a monthly basis, upon Bank’s receipt of Borrower’s monthly financial
statements.”
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1.11. Section
2.16 (Termination Fee) is hereby amended to evidence that ”six (6) months” shall
now mean and read “fifteen (15) months.”
1.12. Section
2.17 (Audit Fees) is amended to evidence that the following sentence is hereby
added as the first sentence of said Section 2.17:
“Section
2.17. 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. . .”
1.13. Section
6.02(3) is hereby deleted and replaced with the following:
“(3) The
ACM
Sub-Debt and ACM-Texas Sub-Debt.”
1.14. Section
7.03 (Minimum Tangible Net Worth) is hereby amended to evidence that the date
“July 31, 2004”, in each instance, shall now mean and read “July 31, 2005”, and
the amount “$57,000,000” shall now mean and read “$60,000,000”.
1.15. Section
10.13 is hereby deleted and replaced with the following:
“Section
10.13. Increased Commitment; Additional Lender.
Initially the aggregate Revolving Credit Commitment shall equal $34,500,000;
however, it is contemplated that the aggregate Revolving Credit Commitment
will
increase to $40,000,000 upon the request of Borrower and approval of and
increased Commitments by the Banks, and/or the addition of one or more
Additional Lenders. In the event Borrower requests and Banks approve an increase
in the Commitment, said increase will be evidenced by execution of a new
Signature Page hereto, stating the amount of the Bank’s increased Commitment, by
any increasing Bank, and delivery to any increasing Bank of an original executed
promissory note equal to the Bank’s increased Commitment. Further, one or more
Additional Lenders may be made a party hereto as determined by Agent, and any
Additional Lender made a party hereto shall execute a Signature Page attached
hereto and made a part hereof, and thereafter shall be included as a Bank under
the terms of this Agreement. By execution of the Additional Lender Signature
Page and upon receipt of an original executed promissory note equal to the
Additional Lender’s Revolving Credit Commitment, each Additional Lender shall be
bound by the terms of this Agreement and entitled to all benefits of this
Agreement as though such Additional Lender or Lenders had signed on the date
of
this Agreement; provided, however, that any Additional Lender shall not receive
payments of principal, interest or fees accrued hereunder or paid by the
Borrower prior to the date such Additional Lender executes its Signature
Page.”
2. Conditions
Precedent.
The
obligations of the Bank to perform under the Credit Agreement, as amended
hereby, are subject to the satisfaction of the following.
2.1. Borrower
shall execute and deliver Promissory Notes, in form and content as set forth
on
Schedule
“2.1(a)”
through
“2.1(f)”
hereto.
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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.
2.3. No
Default or Event of Default exists or will result from the execution and
delivery of this Amendment.
3. Representations
and Warranties.
Each of
the Borrower and the Guarantor, respectively, hereby ratify and confirm all
representations and warranties set forth in Article 4 of the Credit Agreement,
Section 8 of the Security Agreement, and Sections 24 through 29 of the Guaranty
Agreement 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.
4. Ratification.
Borrower hereby ratifies and confirms the Credit Agreement, and all instruments,
documents, and agreements executed by and in connection therewith.
5. Ratification
and Amendment of Guaranties.
Guarantor hereby (i) ratifies and confirms the Guaranty, (ii) acknowledges
and
agrees that the Guaranty is hereby amended to evidence that the amount of the
Loan and Note, as defined therein, may be increased to $40,000,000, and (iii)
acknowledges and agrees that the Guaranty shall fully guarantee the Note in
the
amount of $40,000,000, or any lesser amount to which the Note is
increased.
6. Ratification
and Amendment of Subordination Agreements.
ACM and
ACM-Texas each hereby (i) ratifies and confirms its respective Subordination
Agreement, (ii) acknowledges and agrees that its respective Subordination
Agreement is hereby amended to evidence that the amount of the Loan and Note,
as
defined therein, may be increased to $40,000,000, (iii) acknowledges and agrees
that the Superior Obligations and Superior Liens, as defined in its respective
Subordination Agreement, shall include the $40,000,000 Note, or any lesser
amount to which the Note is increased, and (iv) acknowledges and agrees that
its
respective Subordinate Obligations and Subordinate Liens shall be subordinate
to
the $40,000,000 Note, or any lesser amount to which the Note is
increased.
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.
[Signature
pages to follow.]
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“BORROWER”
COLONIAL
AUTO FINANCE, INC.,
an Arkansas corporation
By
/s/ X. X. Xxxxxxx,
III
X. X. Xxxxxxx, III, President
"GUARANTOR"
and “SUBORDINATING PARTY”
AMERICA’S
CAR-MART, INC.,
a
Texas
corporation,
formerly known as Crown
Group,
Inc.
By
/s/ Xxxx X.
Xxxxxxx
Xxxx X. Xxxxxxx, Vice President
AMERICA’S
CAR MART, INC.,
an
Arkansas corporation
By
/s/ Xxxx X.
Xxxxxxx
Xxxx X. Xxxxxxx, Vice
President
|
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“BANKS” |
|
Revolving
Credit Commitment:
|
BANK
OF OKLAHOMA, N.A.
|
$19,000,000
|
|
Principal
Xxxxxx xxx Xxxxxxx Xxxxxx
X.X.
Xxx 0000
Xxxxx,
XX 00000
|
By
/s/ Xxxxxxx X.
Xxxx
|
Attn:
Xxxx Xxxxxxxx
xxxxxxxxx@xxxx.xxx
|
Xxxxxxx X. Xxxx, Vice President
|
[Signature
Page to First Amendment to Amended and Restated Agented Revolving
Credit
Agreement dated September 30, 2005]
6
Revolving
Credit Commitment:
|
BANK
OF ARKANSAS, N.A.
|
$1,000,000
|
|
Principal
Office and Lending Office:
|
|
X.X.
Xxx 0000
|
|
Xxxxxxxxxxxx,
XX 00000-0000
|
By
/s/ Xxxxxxx X.
Xxxx
|
Attention:
Xxxxxxx X. Xxxx
|
Xxxxxxx X. Xxxx, President & CEO
|
xxxxx@xxxx.xxx
|
|
[Signature
Page to First Amendment to Amended and Restated Agented Revolving
Credit
Agreement dated September 30, 2005]
7
Revolving
Credit Commitment:
|
SOVEREIGN
BANK
|
$3,500,000
|
|
Principal
Office and Lending Office:
|
|
0000
Xxxxx Xxxxxxx 000, Xxxxx 000
|
|
Xxxxxx,
Xxxxx 00000
|
By
/s/ Xxxxxxx X.
Xxxxxx
|
Attention:
Xxxxxxx X. Xxxxxx
|
Xxxxxxx X. Xxxxxx, Area President
|
Email:
_____________
|
[Signature
Page to First Amendment to Amended and Restated Agented Revolving
Credit
Agreement dated September 30, 2005]
8
Revolving
Credit Commitment:
|
GREAT
SOUTHERN BANK
|
$5,000,000
|
|
Principal
Office and Lending Office:
|
|
0000
X. Xxxxxxxxxxx
|
|
Xxxxxxxxxxx,
XX 00000
|
By
/s/ Xxx
Xxxxxx
|
Attn:
Xxx Xxxxxx
|
Xxx Xxxxxx, Vice President
|
xxxxxx@xxxxxxxxxxxxxxxxx.xxx
|
|
[Signature
Page to First Amendment to Amended and Restated Agented Revolving
Credit
Agreement dated September 30, 2005]
9
Revolving
Credit Commitment:
|
FIRST
STATE BANK OF NORTHWEST
|
$1,500,000
|
ARKANSAS
|
Principal
Office and Lending Office:
|
|
X.X.
Xxx 0000
|
|
Xxxxxxxxxxxx,
Xxxxxxxx 00000
|
By
/s/ Xxxxxx
Xxxxxxxx
|
Attn:
Xxxxxx Xxxxxxxx
|
Xxxxxx Xxxxxxxx, President/Chief Executive
|
E-mail:
_________________
|
Officer
|
[Signature
Page to First Amendment to Amended and Restated Agented Revolving
Credit
Agreement dated September 30, 2005]
10
Revolving
Credit Commitment:
|
FIRST
STATE BANK
|
$4,500,000
|
|
Principal
Office and Lending Office:
|
|
000
Xxxxxxxx Xxxxxx
|
|
Xxxxxx,
XX 00000
|
By
/s/ Xxxxxxx
Xxxxx
|
Attention:
Xxxxxxx Xxxxx
|
Xxxxxxx Xxxxx, Senior Vice President
|
xxxxxx@xxxxxxx.xxx
|
[Signature
Page to First Amendment to Amended and Restated Agented Revolving
Credit
Agreement dated September 30, 2005]
11
“AGENT”
|
|
BANK
OF ARKANSAS, N.A.
|
|
|
By
/s/ Xxxxxxx X.
Xxxx
|
Xxxxxxx X. Xxxx, President
|
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By
execution hereof, we evidence our acknowledgment and acceptance of Section
1.1
to this First Amendment to Amended and Restated Revolving Credit Agreement,
to
the extent it applies to us:
“Retiring
Banks”
|
|
LIBERTY
BANK OF ARKANSAS
|
|
By
/s/ Xxxxx
Xxxxxxx
|
|
Xxxxx Xxxxxxx, Senior Vice President
|
|
ARVEST
BANK
|
|
By
/s/ Xxx
Xxxxxx
|
|
Xxx Xxxxxx, Senior Vice President
|
[Signature
Page to First Amendment to Amended and Restated Agented Revolving
Credit
Agreement dated September 30, 2005]
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