SEVENTH AMENDMENT TO AMENDED AND RESTATED AGENTED REVOLVING CREDIT AGREEMENT
Exhibit 4.1
SEVENTH
AMENDMENT TO AMENDED AND RESTATED AGENTED
THIS
SEVENTH AMENDMENT TO THE AMENDED AND RESTATED AGENTED REVOLVING CREDIT AGREEMENT
("Amendment") is dated effective as of December 15, 2008 (“Effective Date”), 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 and May 16, 2008 (as amended, the
"Colonial Credit Agreement"), by and among Borrower, the Banks currently a party
thereto, and Agent, pursuant to which a $40,000,000 Revolving Line of Credit
("RLOC") exists in favor of Borrower.
B. Borrower,
Agent and Banks a party hereto have agreed that certain modifications shall be
made to the Colonial Credit Agreement to increase the RLOC to $41,500,000 (and
to $50,000,000, subject to Section 10.13 of the Colonial Credit Agreement), and
extend the maturity date of the facility to April 30, 2010. Terms
used herein shall have the meanings given in the Colonial Credit Agreement
unless otherwise defined herein.
AGREEMENT
For
valuable consideration received, Agent, Banks and Borrower agree to the
following.
1. Amendments to Colonial
Credit Agreement. The Colonial Credit Agreement is amended as
follows.
1.1 The
Credit Agreement is hereby amended to evidence that effective as of the date
hereof, First State Bank of Conway, Arkansas, Great Southern Bank and Sovereign
Bank (“Retiring Banks”) shall no longer be included as Banks under the Credit
Agreement, and Arvest Bank and Citizens Bank and Trust Company (“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. 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.
1.3.
The
defined term "Total Facility" is hereby amended to evidence that the amount
“$40,000,000” shall now mean and read “41,500,000.”
1.4.
The
defined term "ACM Sub-Debt" is hereby amended to evidence that the amount
"$3,000,000" shall now mean and read "$15,000,000."
1.5.
Section
2.07 (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.
1.6. Section
2.17 (Audit Fees) is deleted and replaced wit the following:
“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 to pay to the Bank all costs and fees reasonably incurred by the Bank's
internal auditors in connection with quarterly audits of the Borrower performed
by such auditors 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 incurred in connection with audits in
an amount greater than $17,500 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.”
1.7. A
new Section 2.20 is added as follows:
"Section
2.20. Facility Fee. The Borrower agrees to pay to the
Agent for the pro rata benefit of the Banks an annual Facility Fee equal to
twelve and one-half basis points (12.5 basis points) on the aggregate Commitment
payable on the last day of each fiscal quarter, commencing December 31, 2008, so
long as this Agreement remains in effect."
1.8. Section
8.01(11) is deleted and replaced with the following:
"Events of
Default (11). The Advance Rate Adjustment Percent should exceed 40%
for two consecutive months.
1.9. A
new Section 8.01 (Events of Default) (16) is added as follows:
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"Section 8.01. Events of Default
(16) . 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 to America's Car
Mart, Inc., an Arkansas corporation ("ACM"), Texas Car Mart, Inc., a Texas
corporation (TCM) and Lender established June 23, 2005 and all subsequent
modifications or increases as well as any other separate loan facility granted
thereafter."
1.10. Section
10.02 (Notices) is hereby amended to the extent that the notice addresses set
forth therein shall now be replaced with the address and other contact
information set forth on the respective signature pages hereto.
1.11. Section
10.13 (Additional Lender), is hereby amended to evidence that the amount
“$34,500,000” shall now mean and read “$41,500,000”, and the amount
“$40,000,000” shall now mean and read “$50,000,000.”
1.12.
Section
6.04 (Leases) is hereby amended to evidence that the amount “$250,000" shall now
mean and read “$1,000,000".
1.13. 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, or (B.) $128,000,000 plus
(ii) seventy-five percent (75%) of positive quarterly Net Income and (ii) one
hundred percent (100%) of any subsequent equity issuances.”
1.14. 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 2.75x to 1.00.”
2. Conditions
Precedent. The obligations of Agent and each 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.
|
Borrower
shall execute and deliver to Agent this Amendment and the Promissory Notes
as follows:
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|
2.1.1.
|
$10,000,000
Promissory Note to Bank of Arkansas, N.A. attached hereto as Schedule
"2.1.1";
|
|
2.1.2.
|
$12,000,000
Promissory Note to Commerce Bank, attached hereto as Schedule
"2.1.2";
|
|
2.1.3.
|
$6,000,000
Promissory Note to Enterprise Bank & Trust, attached hereto as Schedule
"2.1.3";
|
|
2.1.4.
|
$1,500,000
Promissory Note to First State Bank of Northwest Arkansas, attached hereto
as Schedule
"2.1.4";
|
|
2.1.5.
|
$5,000,000
Promissory Note to Arvest Bank, attached hereto as Schedule
"2.1.5";
|
3
|
2.1.6.
|
$7,000,000
Promissory Note to Citizens Bank and Trust Company, attached hereto as
Schedule
"2.1.6"; and
|
|
2.1.7.
|
Any
other instruments, documents and agreements required by Agent and
Banks.
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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.
4. Ratification. Borrower
hereby ratifies and confirms the Colonial Credit Agreement, and all instruments,
documents, and agreements executed by Borrower in connection therewith, and
further 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 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.
7. Ratification of
Subordination Agreements. ACM and ACM-Texas each hereby
ratifies and confirms its respective Subordination Agreement dated June 23,
2005, 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. Release of
Lender. The Borrower hereby releases Agent and each of the
Banks from any and all claims, known or unknown, which may have arisen out of or
in connection with the Colonial Credit Agreement on or prior to the Effective
Date.
10. 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.
11. 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.]
4
“BORROWER”
COLONIAL
AUTO FINANCE, INC., an Arkansas corporation
By__/s/
Xxxxxxx X. Xxxxxxxxx
Xxxxxxx
X. Xxxxxxxxx, President
“GUARANTORS”
and
“SUBORDINATING
PARTIES”
AMERICA’S
CAR-MART, INC., a Texas corporation, formerly known as Crown Group,
Inc.
By_/s/
Xxxxxxx X. Williams__
Xxxxxxx
X. Xxxxxxxx, Vice President
AMERICA’S
CAR MART, INC.,
an
Arkansas corporation
By__/s/
Xxxxxxx X. Xxxxxxxx
Xxxxxxx
X. Xxxxxxxx, Vice President
5
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, 2017__________________
(S E A
L)
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. 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)
6
“BANKS”
Revolving
Credit
Commitment: BANK
OF ARKANSAS, N.A.
$10,000,000
Principal
Office and Lending
Office: By /s/
Xxxxxxx X. Xxxx
P.O. Box
1407 Xxxxxxx
X. Xxxx, President & CEO
Xxxxxxxxxxxx,
XX 00000-0000
Attention:
Xxxxxxx X. Xxxx
xxxxx@xxxxxxxxxxxxxx.xxx
|
|
[Signature
Page to Seventh Amendment to Amended and Restated Agented
Revolving
|
Credit
Agreement dated December 15, 2008]
7
Revolving
Credit
Commitment: COMMERCE
BANK, N.A.
$12,000,000
Principal
Office and Lending Office:
0000
Xxxxxx Xx., XX00-0
Xxxxxx
Xxxx, XX 00000
| Attention: Xxxx Area By | /s/ Xxxx Area |
|
E-mail: xxxxx@xxxxxxxxxxxx.xxx
|
Xxxx
Area, Vice President
|
| Regional Banking |
[Signature
Page to Seventh Amendment to Amended and Restated Agented Revolving
Credit
Agreement dated December 15, 2008]
8
Revolving
Credit
Commitment: ENTERPRISE
BANK & TRUST
$6,000,000
Principal
Office and Lending Office:
00000
Xxxxxxx Xxx.
Xxxxxxxx
Xxxx,
XX 00000 By /s/
Xxxx Xxxxxxx
|
Attention:
Xxxx Xxxxxxx
|
Xxxx
Xxxxxxx,
|
| Senior Vice President |
[Signature
Page to Seventh Amendment to Amended and Restated Agented Revolving
Credit
Agreement dated December 15, 2008]
9
Revolving
Credit
Commitment: FIRST
STATE BANK OF NORTHWEST ARKANSAS
$1,500,000
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: xxxxxxxxx@xxxxxx.xxx Officer
[Signature
Page to Seventh Amendment to Amended and Restated Agented Revolving
Credit
Agreement dated December 15, 2008]
10
Revolving
Credit
Commitment ARVEST
BANK
$5,000,000
Principal
Office and Lending Office:
000 X.
Xxxx
Xxxxx,
Xxxxxxxx
00000
By
/s/
Xxxxx Xxxxxxx
Attn: Xxxxx
Xxxxxxx Xxxxx
Xxxxxxx
xxxxxxxx@xxxxxx.xxx Title:
Senior Vice President
[Signature
Page to Seventh Amendment to Amended and Restated Agented Revolving
Credit
Agreement dated December 15, 2008]
11
Revolving
Credit
Commitment: Citizens
Bank and Trust Company
$7,000,000
Principal
Office and Lending Office:
0000 XX
Xxxxxxxxx Xxxx, Xxxxx 000
|
Xxxxxxxxx,
XX 00000
|
By:
|
/s/
Xxxxx Xxxxxxx
|
| Attn: Xxxxx Xxxxxxx | Name: Xxxxx Xxxxxxx | |
| E-mail: xxxxxxxx@xxxxxxxxx.xxx | Title: Senior Vice President |
[Signature
Page to Seventh Amendment to Amended and Restated Agented Revolving
Credit
Agreement dated December 15, 2008]
12
“AGENT”
BANK OF
ARKANSAS, N.A.
By /s/
Xxxxxxx X. Xxxx
Xxxxxxx X. Xxxx, President &
CEO
[Signature
Page to Seventh Amendment to Amended and Restated Agented Revolving
Credit
Agreement dated December 15, 2008]
13
Schedule
"2.1.1."
($10,000,000
Promissory Note to Bank of Arkansas, N.A.)
14
Schedule
"2.1.2."
($12,000,000
Promissory Note to Commerce Bank)
15
Schedule
"2.1.3."
($6,000,000
Promissory Note to Enterprise Bank & Trust)
16
Schedule
"2.1.4."
($1,500,000
Promissory Note to First State Bank of Northwest Arkansas)
17
Schedule
"2.1.5."
($5,000,000
Promissory Note to Arvest Bank)
18
Schedule
"2.1.6."
($7,000,000
Promissory Note to Citizens Bank and Trust Company)
19
