EIGHTH AMENDMENT TO AMENDED AND RESTATED AGENTED REVOLVING CREDIT AGREEMENT
Exhibit 4.10
EIGHTH
AMENDMENT TO AMENDED AND RESTATED AGENTED
REVOLVING
CREDIT AGREEMENT
THIS EIGHT AMENDMENT TO AMENDED AND
RESTATED AGENTED REVOLVING CREDIT AGREEMENT ("Amendment") is dated
effective as of February 28, 2009, by and among COLONIAL AUTO FINANCE, INC.,
an Arkansas corporation (“Borrower”), BANK OF ARKANSAS, N.A., FIRST STATE BANK OF NORTHWEST
ARKANSAS, ENTERPRISE
BANK & TRUST, ARVEST
BANK, CITIZENS BANK AND TRUST COMPANY, 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, December 31, 2006, May 16, 2008, and December 15, 2008 (as
amended, the "Colonial Credit Agreement"), by and among Borrower, the Banks
party thereto, and Agent, pursuant to which a $41,500,000 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
$2,100,000.”
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.
2.1. Borrower
shall execute and deliver this Amendment.
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. 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.
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\ Xxxxxxx X. Xxxxxxxxx
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Xxxxxxx
X. 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\ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx
X. 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\ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx
X. Xxxxxxxx, Vice
President
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[Signature
Page to Eighth Amendment to Amended and Restated Agented
Revolving
Credit
Agreement dated February 28, 0000]
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XXXXX
XX XXXXXXXX
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)
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)
ss:
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ACKNOWLEDGMENT
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COUNTY
OF BENTON
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)
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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 5th day of
March, 2009.
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\s\ Xxxxxx X.
Xxxxxx
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Notary
Public
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My
commission expires:
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2/28/2017
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(S
E A L)
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STATE
OF ARKANSAS
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)
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)
ss:
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ACKNOWLEDGMENT
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COUNTY
OF BENTON
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)
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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 5th day of
March, 2009.
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\s\ Xxxxxx X.
Xxxxxx
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Notary
Public
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My
commission expires:
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2/28/2017
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(S
E A L)
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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
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\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 Eighth Amendment to Amended and Restated Agented
Revolving
Credit
Agreement dated February 28, 2009]
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Revolving
Credit Commitment:
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COMMERCE
BANK, N.A.
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$12,000,000
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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
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\s\ Xxxx Area
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E-mail: xxxxx@xxxxxxxxxxxx.xxx
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Xxxx
Area, Vice President
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Regional
Banking
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[Signature
Page to Eighth Amendment to Amended and Restated Agented
Revolving
Credit
Agreement dated February 28, 2009]
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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\ Xxxx Xxxxxxx
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Attention:
Xxxx Xxxxxxx
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Xxxx
Xxxxxxx,
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Senior
Vice President
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[Signature
Page to Eighth Amendment to Amended and Restated Agented
Revolving
Credit
Agreement dated February 28, 2009]
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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,
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President/Chief
Executive
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E-mail: xxxxxxxxx@xxxxxx.xxx
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Officer
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[Signature
Page to Eighth Amendment to Amended and Restated Agented
Revolving
Credit
Agreement dated January 31, 2009]
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Revolving
Credit Commitment
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ARVEST
BANK
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$5,000,000
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Principal
Office and Lending Office:
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000
X. Xxxx
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Xxxxx,
Xxxxxxxx 00000
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By
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\s\ Xxxxx
Xxxxxxx
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Attn: Xxxxx
Xxxxxxx
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Xxxxx
Xxxxxxx
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xxxxxxxx@xxxxxx.xxx
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Title:
Senior Vice President
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[Signature
Page to Eighth Amendment to Amended and Restated Agented
Revolving
Credit
Agreement dated February 28, 2009]
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Revolving
Credit Commitment:
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Citizens
Bank and Trust Company
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$7,000,000
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Principal
Office and Lending Office:
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0000
XX Xxxxxxxxx Xxxx, Xxxxx 000
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Xxxxxxxxx,
XX 00000
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By:
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\s\ Xxxxx
Xxxxxxx
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Attn:
Xxxxx Xxxxxxx
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Name: Xxxxx
Xxxxxxx
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E-mail:
xxxxxxxx@xxxxxxxxx.xxx
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Title: Senior
Vice President
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[Signature
Page to Eighth Amendment to Amended and Restated Agented
Revolving
Credit
Agreement dated February 28, 2009]
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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 Eighth Amendment to Amended and Restated Agented
Revolving
Credit
Agreement dated February 28, 2009]
