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Exhibit 4.1
SEVENTH AMENDMENT TO AMENDED AND RESTATED AGENTED REVOLVING CREDIT
AGREEMENT
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.
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