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Exhibit 4.1
SIXTH AMENDMENT TO AMENDED AND RESTATED AGENTED
REVOLVING CREDIT AGREEMENT
THIS SIXTH AMENDMENT TO AMENDED AND RESTATED AGENTED REVOLVING
CREDIT AGREEMENT ("Amendment") is dated effective as of May
16, 2008, 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 ,
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, April 28, 2006, and
December 31, 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 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
$1,800,000.”
1.2. In
Section 1.01, the defined term “Obligations” is
hereby deleted and replaced with the following:
“’Obligations’
means, collectively (i) all present and future loans,
advances, liabilities, obligations, covenants, duties, and
debts owing by the Borrower to the Agent and/or any Bank
arising under or pursuant to this Agreement or any of the
other Loan Documents, whether or not evidenced by any note, or
other instrument or document, whether arising from an
extension of credit, opening of a letter of credit,
acceptance, loan, guaranty, indemnification or otherwise,
whether direct or indirect (including, without limitation,
those acquired by assignment from others, and any
participation by the Agent and/or any Bank in the
Borrower’s debts owing to others), absolute or
contingent, due or to become due, primary or secondary, as
principal or guarantor, and including, without limitation, all
principal, interest, charges, expenses, fees, attorneys’
fees, filing fees and any other sums chargeable to the
Borrower hereunder or under any of the other Loan Documents,
and (ii) all Rate Management Obligations owing to one or more
Banks.”
1.3. The
following new defined terms are hereby added to Section
1.01:
“’Rate
Management Obligations’ of a Person means any and all
obligations of such Person, whether absolute or contingent and
howsoever and whensoever created, arising, evidenced or
acquired (including all renewals, extensions and modifications
thereof and substitutions therefor), under (i) any and all
Rate Management Transactions, and (ii) any and all
cancellations, buy backs, reversals, terminations or
assignments of any Rate Management
Transactions.”
“’Rate
Management Transaction’ means any transaction (including
an agreement with respect thereto) now existing or hereafter
entered by the Borrower which is a rate swap, basis swap,
forward rate transaction, commodity swap, commodity option,
equity or equity index swap, equity or equity index option,
bond option, interest rate option, foreign exchange
transaction, cap transaction, floor transaction, collar
transaction, forward transaction, currency swap transaction,
cross-currency rate swap transaction, currency option or any
other similar transaction (including any option with respect
to any of these transactions) or any combination thereof,
whether linked to one or more interest rates, foreign
currencies, commodity prices, equity prices or other financial
measures.”
1.4. &nb
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