Exhibit 4.1
FIFTH AMENDMENT TO AMENDED
AND RESTATED AGENTED
REVOLVING CREDIT
AGREEMENT
THIS FIFTH AMENDMENT TO AMENDED AND RESTATED
AGENTED REVOLVING CREDIT AGREEMENT ("Amendment") is dated effective as of December
31, 2006, 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 , and
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, and April 28, 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 for compliance purposes. 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.
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1.1.
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The term
“Borrowing Base” is hereby amended to evidence that the
amount “$20,000,000” shall now mean and read
“$10,000,000 plus the outstanding balance of the $9,134,000
Promissory Note payable by America’s Car Mart, Inc. and Texas
Car-Mart, Inc. to Bank of Oklahoma”.
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1.2
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The term "Prime
Rate" is amended to read as follows:
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"Prime Rate"
means a rate which is subject to change from time to time based on
changes in an index which is the BOKF National Prime Rate,
described as the rate of interest set by BOK Financial Corporation,
in its sole discretion, on a daily basis as published by BOK
Financial Corporation (“BOKF”) from time to time (the
“Index”). The Index is not necessarily the lowest rate
charged by Lender on its loans and is set by Lender in its sole
discretion. If the Index becomes unavailable during the term of
this loan, Lender may designate a substitute index after notifying
Borrower. Lender will tell Borrower the current index rate upon
Borrower’s request. The interest rate change will not occur
more often than each day. Borrower understands that Lender may make
loans based on other rates as well. NOTICE: Under no circumstances
will the interest rate on this Note be more than the maximum
rate
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allowed by
applicable law. Whenever increases occur in the interest rate,
Lender, at its option, may do one or more of the following: (A)
increase Borrower’s payments to ensure Borrower’s loan
will pay off by its original final maturity date, (B) increase
Borrower’s payments to cover accruing interest, (C) increase
the number of Borrower’s payments, and (D) continue
Borrower’s payments at the same amount and increase
Borrower’s final payment.
1.3.
Section 2.05 is hereby amended to
replace the existing pricing grid with the following:
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Tier
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Funded Debt to EBITDA*
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Adjusted Prime Rate
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Adjusted LIBOR Rate
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I
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<1.75
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Prime Rate minus
25 bps
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LIBOR Rate plus 275 bps
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II
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> 1.75 and <2.00
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Prime Rate plus 0.0
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LIBOR rate plus
300 bps
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III
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> 2.00 and <2.25
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Prime Rate plus
25 bps
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LIBOR rate plus
325 bps
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IV
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> 2.25 and <2.50
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Prime Rate plus
50 bps
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LIBOR rate plus
350 bps
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V
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> 2.50 and <3.50
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Prime Rate plus
75 bps
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LIBOR rate plus
375 bps
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VI
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> 3.5
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Prime Rate plus
100 bps
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LIBOR rate plus
400 bps
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*Combined Ratio
for American Car Mart, Inc., Texas Car-Mart, Inc. and Colonial
Auto Finance, Inc.
The Adjusted
Rate shall be determined in accordance with the foregoing table
based on the combined Funded Debt to EBITDA as reflected in the
then most recent Financials. Adjustments, if any, shall be
effective five Business Days after Bank of Arkansas, N.A. has
received the applicable Financials. If the Borrower fails to
deliver the Financials at the time required, then the rate shall be
the highest rate set forth in the foregoing table until five (5)
Business Days after such Financials are so delivered.
1.4
Section 2.16 (Termination Fee) is hereby amended to the
extent that it shall continue to be effective through December 31,
2007.
1.5.
Article 7 is hereby replaced with the following:
Article
7
FINANCIAL COVENANTS
The following
financial covenants shall be calculated based upon a combined
financial basis of America's Car Mart, Inc. and Colonial Auto
Finance, Inc. So long as any Note shall remain unpaid or any Bank
shall have any Commitment under this Agreement:
Section
7.01. Leverage Ratio. At all times, 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 4.00 to 1.00,
reducing to 3.50 to 1.00 on November 1, 2007, 3.00 to 1.00 on
February 1, 2008, 2.75 to 1.00 on May 1, 2008 and 2.50 to 1.00 on
November 1, 2008. For purposes of this calculation, the $5,371,000
one-time, non-cash charge will be excluded
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