UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

 

Washington D.C. 20549

 

 

FORM 8-K

 

CURRENT REPORT

 

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

 

 

Date of Report (Date of earliest event reported): December 3, 2018

 

 

AMERICA’S CAR-MART, INC.

(Exact name of registrant as specified in its charter)

 

 

Texas 0-14939 63-0851141
(State or other jurisdiction of incorporation) (Commission file number) (I.R.S. Employer Identification No.)

 

 

802 SE Plaza Avenue, Suite 200, Bentonville, Arkansas 72712

(Address of principal executive offices, including zip code)

 

(479) 464-9944

(Registrant’s telephone number, including area code)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

[   ] Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

[   ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

[   ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

[   ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2).

 

Emerging growth company [   ]

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. [   ]

 

 

 

 

Item 1.01. Entry into a Material Definitive Agreement.

 

On December 3, 2018, America’s Car-Mart, Inc., a Texas corporation (the “Company”), and its subsidiaries, Colonial Auto Finance, Inc., an Arkansas corporation (“Colonial”), America’s Car Mart, Inc., an Arkansas corporation (“ACM”), and Texas Car-Mart, Inc., a Texas corporation (“TCM”), entered into Amendment No. 2 to the Second Amended and Restated Loan and Security Agreement (“Agreement”), dated as of December 3, 2018, by and among the Company, Colonial, ACM, TCM and a group of lenders.

 

Amendment No. 2 to the Agreement (the “Amendment”) extends the term of the Company’s revolving credit facilities to December 3, 2021 and increases the total permitted borrowings from $200 million to $215 million, including an increase in the Colonial revolving line of credit from $190 million to $205 million. The ACM-TCM revolving line of credit commitment remains the same at $10 million. At October 31, 2018, the end of the Company’s second fiscal quarter, there was approximately $35 million in additional availability under the Agreement.

 

The Amendment also reduces the current applicable interest rate by 0.10% to the lowest applicable pricing tier at LIBOR plus 2.25% until May 31, 2019. After May 31, 2019, the applicable interest rate will again be subject to adjustment in accordance with the four pricing tiers set forth in the Amendment based on the Company’s consolidated leverage ratio for the preceding fiscal quarter.

 

The descriptions above are summaries and are qualified in their entirety by Amendment No. 2, which is filed as an exhibit to this report and is incorporated herein by reference.

 

Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

 

The information set forth above under Item 1.01 is hereby incorporated by reference into this Item 2.03.

 

Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

 

On December 4, 2018, the Board of Directors of the Company elected Ann G. Bordelon as a new, independent director, effective January 1, 2019. Ms. Bordelon will serve until the Company’s 2019 Annual Meeting of Stockholders, and until such time as her successor is duly elected and qualified, or until her earlier resignation or removal. This appointment fills the vacancy resulting from the previously announced retirement of Robert “Cameron” Smith from the Board of Directors in August 2018. Ms. Bordelon was appointed to the audit, compliance and nominating committees of the Board.

 

Ms. Bordelon, age 51, is the Chief Financial Officer of Mitchell Communications Group, a leading integrated public relations agency. Mitchell is the public relations flagship of the Dentsu-Aegis Network. Prior to her role with Mitchell Communications Group, Ms. Bordelon served from October 2015 to March 2017 as Chief Financial and Administrative Officer of NOWDiagnostics, Inc., an early stage company developing rapid medical diagnostic testing devices, and she continues to serve as an advisor to the company. Ms. Bordelon retired from Walmart in 2015 after serving the company for nearly 13 years as CFO of Walmart’s Sam’s Club division, CFO of Walmart’s Asia Region, and as Chief Audit Executive, among other financial roles. She is the chair of the Dean’s Executive Advisory Board for the Sam M. Walton College of Business at the University of Arkansas. Ms. Bordelon, a Certified Public Accountant, holds a Bachelor of Science in Business Administration degree from the University of Arkansas.

 

 

 

 

The Company has in the past and is currently utilizing Mitchell Communications Group for web site development, social media development and digital efforts. The Company paid Mitchell Communications Group $250,000 and $86,000 for those services in fiscal 2018 and fiscal 2019, respectively. The Company does not currently anticipate engaging Mitchell Communications Group for services beyond December 2018.

 

There is no arrangement or understanding between Ms. Bordelon and any other persons pursuant to which Ms. Bordelon was selected as director.

 

Item 9.01. Financial Statements and Exhibits

 

(d) Exhibits.

 

4.1 Second Amended and Restated Loan and Security Agreement dated December 12, 2016, among America’s Car-Mart, Inc., a Texas corporation, as Parent; Colonial Auto Finance, Inc., an Arkansas corporation, America’s Car Mart, Inc., an Arkansas corporation, and Texas Car-Mart, Inc., a Texas corporation, as Borrowers; and certain financial institutions, as Lenders, with Bank of America N.A., as Agent, Lead Arranger and Book Manager (Incorporated by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K filed with the SEC on December 15, 2016).

 

4.2 Amendment No. 1 to Second Amended and Restated Loan and Security Agreement dated October 25, 2017, among America’s Car-Mart, Inc., a Texas corporation, as Parent; Colonial Auto Finance, Inc., an Arkansas corporation, America’s Car Mart, Inc., an Arkansas corporation, and Texas Car-Mart, Inc., a Texas corporation, as Borrowers; and certain financial institutions, as Lenders, with Bank of America N.A., as Agent, Lead Arranger and Book Manager (Incorporated by reference to Exhibit 4.2 to the Company’s Current Report on Form 8-K filed with the SEC on October 30, 2017).

 

4.3 Amendment No. 2 to Second Amended and Restated Loan and Security Agreement dated December 3, 2018, among America’s Car-Mart, Inc., a Texas corporation, as Parent; Colonial Auto Finance, Inc., an Arkansas corporation, America’s Car Mart, Inc., an Arkansas corporation, and Texas Car-Mart, Inc., a Texas corporation, as Borrowers; and certain financial institutions, as Lenders, with Bank of America N.A., as Agent, Lead Arranger and Book Manager.

 

4.4 Colonial Revolver Note dated December 3, 2018 by Colonial Auto Finance, Inc. in favor of First Tennessee Bank, as Lender.

 

4.5 Colonial Revolver Note dated December 3, 2018 by Colonial Auto Finance, Inc. in favor of Arvest Bank, as Lender.

 

4.6 Colonial Revolver Note dated December 3, 2018 by Colonial Auto Finance, Inc. in favor of Commerce Bank, as Lender.

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

    America’s Car-Mart, Inc.  
       
Date: December 7, 2018   /s/ Vickie D. Judy  
    Vickie D. Judy
    Chief Financial Officer and Secretary
    (Principal Financial Officer)

 

 

 

 

Exhibit 4.3

 

 

AMENDMENT NO. 2 TO
SECOND AMENDED AND RESTATED

LOAN AND SECURITY AGREEMENT

This AMENDMENT NO. 2 TO SECOND AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT (“ Amendment ”) is dated as of December 3, 2018 and is entered into by and among AMERICA’S CAR-MART, INC. , a Texas corporation (“ Parent ”), COLONIAL AUTO FINANCE, INC. , an Arkansas corporation (“ Colonial ”), AMERICA’S CAR MART, INC. , an Arkansas corporation (“ ACM ”), TEXAS CAR-MART, INC. , a Texas corporation (“ TCM ”)(each of Colonial, ACM and TCM, a “ Borrower ”, and collectively, “ Borrowers ”), the financial institutions party to the Loan Agreement (as hereinafter defined) as lenders (collectively, “ Lenders ”), BANK OF AMERICA, N.A. , as agent for the Lenders (in such capacity, “ Agent ”), lead arranger and book manager for the Lenders. All capitalized terms used herein but not otherwise defined shall have the meanings ascribed to them in the Loan Agreement (as hereinafter defined).

 

WITNESSETH

 

WHEREAS, Parent, Borrowers, Lenders and Agent have entered into that certain Second Amended and Restated Loan and Security Agreement dated as of December 12, 2016 (as amended, amended and restated, modified, supplemented or renewed prior to the date hereof, the “ Loan Agreement ”);

 

WHEREAS, Parent, Borrowers, Lenders and Agent have agreed to amend the Loan Agreement subject to the terms and conditions stated herein; and

 

NOW, THEREFORE, in consideration of the premises herein contained and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, Lenders, Agent, Parent and Borrowers hereby agree as follows:

 

I.                     Amendment to the Loan Agreement .

 

A.                 The following definitions are hereby added to Section 1.1 of the Loan Agreement in alphabetical order as follows:

 

Beneficial Ownership Certification : a certification regarding beneficial ownership required by the Beneficial Ownership Regulation.

 

Beneficial Ownership Regulation : means 31 C.F.R. § 1010.230.

 

Amendment No. 2 Effectiveness Date : December 3, 2018.

 

 

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B.                  The following definitions as set forth in Section 1.1 of the Loan Agreement are hereby amended and restated in their entirety to read as follows:

 

ACM-TCM Revolver Termination Date : December 3, 2021.

 

Applicable Margin : with respect to any Type of Revolver Loan, the margin set forth below, as determined by the Leverage Ratio for the last Fiscal Quarter:

 

Level Leverage Ratio Base Rate Revolver Loans LIBOR Revolver Loans
I < 0.75:1.00 0% 2.25%
II > 0.75:1.00 and < 1.50:1.00 0% 2.35%
III > 1.50:1.00 and < 1.75:1.00 0.25% 2.75%
IV > 1.75:1.00 0.50% 3.00%


Until May 31, 2019, margins shall be determined as if Level I were applicable. Thereafter, the margins shall be subject to increase or decrease upon receipt by Agent pursuant to Section 10.1.2 of the financial statements and corresponding Compliance Certificate for the last Fiscal Quarter, which change shall be effective on the first day of the calendar month following receipt. If, by the first day of a month, any financial statements and Compliance Certificate due in the preceding month have not been received, then the margins shall be determined as if Level IV were applicable, from such day until the first day of the calendar month following actual receipt.

 

Colonial Revolver Termination Date : December 3, 2021.

 

C.                  Section 10.1.15 is hereby added to the Loan Agreement as follows:

 

10.1.15        Beneficial Ownership, etc . Promptly following any request therefor, provide information and documentation reasonably requested by the Agent or any Lender for purposes of compliance with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act and the Beneficial Ownership Regulation.

 

D.                 Schedule 1.1 to the Loan Agreement is hereby deleted and replaced with Schedule 1.1 attached hereto.

 

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II.                Conditions . The effectiveness of this Amendment is subject to the satisfaction of the following conditions precedent:

 

A.                 Amendment . Fully executed copies of this Amendment signed by Parent, Borrowers and Lenders shall have been delivered to Agent.

 

B.                  Beneficial Ownership . The information included in the Beneficial Ownership Certification, if applicable, is true and correct in all respects.

 

C.                  Notes . To the extent requested by any Lender in connection with this Amendment, Borrowers shall have executed and delivered promissory notes to such Lender.

 

D.                 Other Documents . Borrowers shall have executed and delivered to Agent such other documents and instruments as Agent may reasonably require.

 

III.               Miscellaneous .

 

A.                 Survival of Representations and Warranties . All representations and warranties made in the Loan Agreement or any other document or documents relating thereto, including, without limitation, any Loan Document furnished in connection with this Amendment, shall survive the execution and delivery of this Amendment and the other Loan Documents, and no investigation by Agent or the Lenders shall affect the representations and warranties or the right of Agent or the Lenders to rely thereon.

 

B.                  Reference to Loan Agreement . The Loan Agreement, each of the Loan Documents, and any and all other agreements, documents or instruments now or hereafter executed and delivered pursuant to the terms hereof, or pursuant to the terms of the Loan Agreement as amended hereby, are hereby amended so that any reference therein to the Loan Agreement shall mean a reference to the Loan Agreement as amended hereby.

 

C.                  Loan Agreement Remains in Effect . The Loan Agreement and the Loan Documents, as amended hereby, remain in full force and effect and Parent and each Borrower ratifies and confirms its agreements and covenants contained therein. Parent and each Borrower hereby confirms that to the best of its knowledge no Event of Default or Default exists.

 

D.                 Severability . Any provision of this Amendment held by a court of competent jurisdiction to be invalid or unenforceable shall not impair or invalidate the remainder of this Amendment and the effect thereof shall be confined to the provision so held to be invalid or unenforceable.

 

E.                  Counterparts . This Amendment may be executed in one or more counterparts, each of which when so executed shall be deemed to be an original, but all of which when taken together shall constitute one and the same instrument.

 

F.                   Headings . The headings, captions and arrangements used in this Amendment are for convenience only and shall not affect the interpretation of this Amendment.

 

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G.                 NO ORAL AGREEMENTS . THIS AMENDMENT, TOGETHER WITH THE OTHER LOAN DOCUMENTS AS WRITTEN, REPRESENTS THE FINAL AGREEMENT BETWEEN LENDERS, AGENT AND BORROWERS AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN AGENT, LENDERS AND BORROWERS.

 

 

 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

 

 

 

 

 

 

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IN WITNESS WHEREOF, the parties have executed this Amendment under seal on the date first written above.

 

BORROWERS :

 

COLONIAL AUTO FINANCE, INC .,
an Arkansas corporation
By: /s/ Vickie D. Judy
Name: Vickie D. Judy
Title: Secretary
 
 
AMERICA’S CAR MART, INC .,
an Arkansas corporation
By: /s/ Vickie D. Judy
Name: Vickie D. Judy
Title: Vice President & Secretary
 
 
TEXAS CAR-MART, INC.,
a Texas corporation
By: /s/ Vickie D. Judy
Name: Vickie D. Judy
Title: Vice President & Secretary
 
 
     

 

 

 

 

 

 

 

 

Signature Page to Amendment No. 2 to Second Amended and Restated Loan and Security Agreement

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PARENT :

 

AMERICA’S CAR-MART, INC. ,
a Texas corporation
By: /s/ Vickie D. Judy
Name: Vickie D. Judy
Title: Chief Financial Officer & Secretary
       

 

 

 

 

 

 

 

 

 

Signature Page to Amendment No. 2 to Second Amended and Restated Loan and Security Agreement

6

 

 

 

AGENT AND LENDERS :

 

BANK OF AMERICA, N.A.
as Agent and Lender

 

By: /s/ Carlos Gil
Name: Carlos Gil
Title: Senior Vice President
     

 

 

 

 

 

 

 

 

 

 

 

Signature Page to Amendment No. 2 to Second Amended and Restated Loan and Security Agreement

7

 

 


BOKF, NA D/B/A BANK OF ARKANSAS ,
as Lender

 

By: /s/ Jacob Hudson
Name: Jacob Hudson
Title: Senior Vice President
       

 

 

 

 

 

 

 

Signature Page to Amendment No. 2 to Second Amended and Restated Loan and Security Agreement

8

 

 

FIRST TENNESSEE BANK, NATIONAL ASSOCIATION,
as Lender

By: /s/ Blake Chandler
Name: Blake Chandler
Title: Vice President
     

 

 

 

 

 

 

 

 

Signature Page to Amendment No. 2 to Second Amended and Restated Loan and Security Agreement

9

 

 

ARVEST BANK,
as Lender

By: /s/ Robert E. Bresnahan
Name: Robert E. Bresnahan
Title: AVP
     

 

 

 

 

 

 

 

 

 

 

 

 

 

Signature Page to Amendment No. 2 to Second Amended and Restated Loan and Security Agreement

10

 

 

COMMERCE BANK ,
as Lender

By: /s/ Adam Hensley
Name: Adam Hensley
Title: Vice President
     

 

 

 

 

 

 

 

 

 

 

 

Signature Page to Amendment No. 2 to Second Amended and Restated Loan and Security Agreement

11

 

 

SCHEDULE 1.1

 

To

 

Second Amended and Restated Loan and Security Agreement

 

Lender

Colonial Revolver Commitment ACM-TCM Revolver Commitment Total Revolver Commitment
Bank of America, N.A. $91,200,000 $4,800,000 $96,000,000
BOKF,NA d/b/a Bank of Arkansas $41,800,000 $2,200,000 $44,000,000
First Tennessee Bank $28,750,000 $1,250,000 $30,000,000
Arvest Bank $24,050,000 $950,000 $25,000,000
Commerce Bank $19,200,000 $800,000 $20,000,000
  Total: $205,000,000 Total: $10,000,000 Total: $215,000,000

 

 

 

 

 

 

 

 

 

 

 

 

 

Schedule 1.1

 

Exhibit 4.4

 

EXECUTION COPY

 

COLONIAL REVOLVER NOTE

 

December 3, 2018 $28,750,000 Bentonville, Arkansas

 

COLONIAL AUTO FINANCE, INC. , an Arkansas corporation (“ Borrower ”), for value received, hereby unconditionally promise to pay to the order of FIRST TENNESSEE BANK , NATIONAL ASSOCIATION (“ Lender ”), the principal sum of TWENTY-EIGHT MILLION SEVEN HUNDRED FIFTY THOUSAND DOLLARS ($28,750,000) , or such lesser amount as may be advanced by Lender as Colonial Revolver Loans and owing as LC Obligations from time to time under the Loan Agreement described below, together with all accrued and unpaid interest thereon. Terms are used herein as defined in the Second Amended and Restated Loan and Security Agreement dated as of December 12, 2016, among Borrower, America’s Car Mart, Inc., an Arkansas corporation, Texas Car-Mart, Inc., a Texas corporation, America’s Car-Mart, Inc., a Texas corporation, Bank of America, N.A., as Agent, Lead Arranger and Book Manager, Lender, and certain other financial institutions, as such agreement may be amended, modified, renewed or extended from time to time (the “ Loan Agreement ”).

 

Principal of and interest on this Note from time to time outstanding shall be due and payable as provided in the Loan Agreement. This Note is issued pursuant to and evidences Colonial Revolver Loans and LC Obligations under the Loan Agreement, to which reference is made for a statement of the rights and obligations of Lender and the duties and obligations of Borrower. The Loan Agreement contains provisions for acceleration of the maturity of this Note upon the happening of certain stated events, and for the borrowing, prepayment and reborrowing of amounts upon specified terms and conditions.

 

The holder of this Note is hereby authorized by Borrower to record on a schedule annexed to this Note (or on a supplemental schedule) the amounts owing with respect to Colonial Revolver Loans and LC Obligations, and the payment thereof. Failure to make any notation, however, shall not affect the rights of the holder of this Note or any obligations of Borrower hereunder or under any other Loan Documents.

 

Time is of the essence of this Note. Borrower and all endorsers, sureties and guarantors of this Note hereby severally waive demand, presentment for payment, protest, notice of protest, notice of intention to accelerate the maturity of this Note, diligence in collecting, the bringing of any suit against any party, and any notice of or defense on account of any extensions, renewals, partial payments, or changes in any manner of or in this Note or in any of its terms, provisions and covenants, or any releases or substitutions of any security, or any delay, indulgence or other act of any trustee or any holder hereof, whether before or after maturity. Borrower agrees to pay, and to save the holder of this Note harmless against, any liability for the payment of all costs and expenses (including without limitation reasonable attorneys’ fees) if this Note is collected by or through an attorney-at-law.

 

In no contingency or event whatsoever shall the amount paid or agreed to be paid to the holder of this Note for the use, forbearance or detention of money advanced hereunder exceed the highest lawful rate permitted under Applicable Law. If any such excess amount is inadvertently paid by Borrower or inadvertently received by the holder of this Note, such excess shall be returned to Borrower or credited as a payment of principal, in accordance with the Loan Agreement. It is the intent hereof that Borrower not pay or contract to pay, and that holder of this Note not receive or contract to receive, directly or indirectly in any manner whatsoever, interest in excess of that which may be paid by Borrower under Applicable Law.

 

This Note shall be governed by the laws of the State of California, without giving effect to any conflict of law principles (but giving effect to federal laws relating to national banks).

 

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This Note is executed in renewal, amendment and restatement of, but not in novation, extinguishment, discharge or satisfaction of the indebtedness evidenced by, all prior Colonial Revolver Note(s) made by Colonial Auto Finance, Inc., an Arkansas corporation, payable to the order of FIRST TENNESSEE BANK, NATIONAL ASSOCIATION (as such note(s) has been amended, restated, supplemented or otherwise modified from time to time prior to the date hereof, the “ Prior Note(s) ”). All amounts outstanding under the Prior Note(s) as of the date hereof are outstanding under the Loan Agreement and due and payable in accordance with the terms of the Loan Agreement and this Note.

 

[ Signature Page Follows ]

 

 

 

 

 

 

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IN WITNESS WHEREOF , this Note is executed as of the date set forth above.

 

 

COLONIAL AUTO FINANCE, INC. ,

an Arkansas corporation

 

 

By: __ /s/ Vickie D. Judy _________________

Name: Vickie D. Judy

Title: Secretary

 

 

 

 

 

Colonial Revolver Note

Signature Page

 

Exhibit 4.5

 

EXECUTED COPY

 

COLONIAL REVOLVER NOTE

 

December 3, 2018 $24,050,000 Bentonville, Arkansas

 

COLONIAL AUTO FINANCE, INC. , an Arkansas corporation (“ Borrower ”), for value received, hereby unconditionally promise to pay to the order of ARVEST BANK (“ Lender ”), the principal sum of TWENTY-FOUR MILLION FIFTY THOUSAND DOLLARS ($24,050,000) , or such lesser amount as may be advanced by Lender as Colonial Revolver Loans and owing as LC Obligations from time to time under the Loan Agreement described below, together with all accrued and unpaid interest thereon. Terms are used herein as defined in the Second Amended and Restated Loan and Security Agreement dated as of December 12, 2016, among Borrower, America’s Car Mart, Inc., an Arkansas corporation, Texas Car-Mart, Inc., a Texas corporation, America’s Car-Mart, Inc., a Texas corporation, Bank of America, N.A., as Agent, Lead Arranger and Book Manager, Lender, and certain other financial institutions, as such agreement may be amended, modified, renewed or extended from time to time (the “ Loan Agreement ”).

 

Principal of and interest on this Note from time to time outstanding shall be due and payable as provided in the Loan Agreement. This Note is issued pursuant to and evidences Colonial Revolver Loans and LC Obligations under the Loan Agreement, to which reference is made for a statement of the rights and obligations of Lender and the duties and obligations of Borrower. The Loan Agreement contains provisions for acceleration of the maturity of this Note upon the happening of certain stated events, and for the borrowing, prepayment and reborrowing of amounts upon specified terms and conditions.

 

The holder of this Note is hereby authorized by Borrower to record on a schedule annexed to this Note (or on a supplemental schedule) the amounts owing with respect to Colonial Revolver Loans and LC Obligations, and the payment thereof. Failure to make any notation, however, shall not affect the rights of the holder of this Note or any obligations of Borrower hereunder or under any other Loan Documents.

 

Time is of the essence of this Note. Borrower and all endorsers, sureties and guarantors of this Note hereby severally waive demand, presentment for payment, protest, notice of protest, notice of intention to accelerate the maturity of this Note, diligence in collecting, the bringing of any suit against any party, and any notice of or defense on account of any extensions, renewals, partial payments, or changes in any manner of or in this Note or in any of its terms, provisions and covenants, or any releases or substitutions of any security, or any delay, indulgence or other act of any trustee or any holder hereof, whether before or after maturity. Borrower agrees to pay, and to save the holder of this Note harmless against, any liability for the payment of all costs and expenses (including without limitation reasonable attorneys’ fees) if this Note is collected by or through an attorney-at-law.

 

In no contingency or event whatsoever shall the amount paid or agreed to be paid to the holder of this Note for the use, forbearance or detention of money advanced hereunder exceed the highest lawful rate permitted under Applicable Law. If any such excess amount is inadvertently paid by Borrower or inadvertently received by the holder of this Note, such excess shall be returned to Borrower or credited as a payment of principal, in accordance with the Loan Agreement. It is the intent hereof that Borrower not pay or contract to pay, and that holder of this Note not receive or contract to receive, directly or indirectly in any manner whatsoever, interest in excess of that which may be paid by Borrower under Applicable Law.

 

This Note shall be governed by the laws of the State of California, without giving effect to any conflict of law principles (but giving effect to federal laws relating to national banks).

 

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This Note is executed in renewal, amendment and restatement of, but not in novation, extinguishment, discharge or satisfaction of the indebtedness evidenced by, all prior Colonial Revolver Note(s) made by Colonial Auto Finance, Inc., an Arkansas corporation, payable to the order of ARVEST BANK (as such note(s) has been amended, restated, supplemented or otherwise modified from time to time prior to the date hereof, the “ Prior Note(s) ”). All amounts outstanding under the Prior Note(s) as of the date hereof are outstanding under the Loan Agreement and due and payable in accordance with the terms of the Loan Agreement and this Note.

 

[ Signature Page Follows ]

 

 

 

 

 

 

 

 

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IN WITNESS WHEREOF , this Note is executed as of the date set forth above.

 

 

COLONIAL AUTO FINANCE, INC. ,

an Arkansas corporation

 

 

By: __ /s/ Vickie D. Judy ________________

Name: Vickie D. Judy

Title: Secretary

 

 

 

 

 

Colonial Revolver Note

Signature Page

 

Exhibit 4.6

 

EXECUTION COPY

 

COLONIAL REVOLVER NOTE

 

December 3, 2018 $19,200,000 Bentonville, Arkansas

 

COLONIAL AUTO FINANCE, INC. , an Arkansas corporation (“ Borrower ”), for value received, hereby unconditionally promise to pay to the order of COMMERCE BANK (“ Lender ”), the principal sum of NINETEEN MILLION TWO HUNDRED THOUSAND DOLLARS ($19,200,000) , or such lesser amount as may be advanced by Lender as Colonial Revolver Loans and owing as LC Obligations from time to time under the Loan Agreement described below, together with all accrued and unpaid interest thereon. Terms are used herein as defined in the Second Amended and Restated Loan and Security Agreement dated as of December 12, 2016, among Borrower, America’s Car Mart, Inc., an Arkansas corporation, Texas Car-Mart, Inc., a Texas corporation, America’s Car-Mart, Inc., a Texas corporation, Bank of America, N.A., as Agent, Lead Arranger and Book Manager, Lender, and certain other financial institutions, as such agreement may be amended, modified, renewed or extended from time to time (the “ Loan Agreement ”).

 

Principal of and interest on this Note from time to time outstanding shall be due and payable as provided in the Loan Agreement. This Note is issued pursuant to and evidences Colonial Revolver Loans and LC Obligations under the Loan Agreement, to which reference is made for a statement of the rights and obligations of Lender and the duties and obligations of Borrower. The Loan Agreement contains provisions for acceleration of the maturity of this Note upon the happening of certain stated events, and for the borrowing, prepayment and reborrowing of amounts upon specified terms and conditions.

 

The holder of this Note is hereby authorized by Borrower to record on a schedule annexed to this Note (or on a supplemental schedule) the amounts owing with respect to Colonial Revolver Loans and LC Obligations, and the payment thereof. Failure to make any notation, however, shall not affect the rights of the holder of this Note or any obligations of Borrower hereunder or under any other Loan Documents.

 

Time is of the essence of this Note. Borrower and all endorsers, sureties and guarantors of this Note hereby severally waive demand, presentment for payment, protest, notice of protest, notice of intention to accelerate the maturity of this Note, diligence in collecting, the bringing of any suit against any party, and any notice of or defense on account of any extensions, renewals, partial payments, or changes in any manner of or in this Note or in any of its terms, provisions and covenants, or any releases or substitutions of any security, or any delay, indulgence or other act of any trustee or any holder hereof, whether before or after maturity. Borrower agrees to pay, and to save the holder of this Note harmless against, any liability for the payment of all costs and expenses (including without limitation reasonable attorneys’ fees) if this Note is collected by or through an attorney-at-law.

 

In no contingency or event whatsoever shall the amount paid or agreed to be paid to the holder of this Note for the use, forbearance or detention of money advanced hereunder exceed the highest lawful rate permitted under Applicable Law. If any such excess amount is inadvertently paid by Borrower or inadvertently received by the holder of this Note, such excess shall be returned to Borrower or credited as a payment of principal, in accordance with the Loan Agreement. It is the intent hereof that Borrower not pay or contract to pay, and that holder of this Note not receive or contract to receive, directly or indirectly in any manner whatsoever, interest in excess of that which may be paid by Borrower under Applicable Law.

 

This Note shall be governed by the laws of the State of California, without giving effect to any conflict of law principles (but giving effect to federal laws relating to national banks).

 

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This Note is executed in renewal, amendment and restatement of, but not in novation, extinguishment, discharge or satisfaction of the indebtedness evidenced by, all prior Colonial Revolver Note(s) made by Colonial Auto Finance, Inc., an Arkansas corporation, payable to the order of COMMERCE BANK (as such note(s) has been amended, restated, supplemented or otherwise modified from time to time prior to the date hereof, the “ Prior Note(s) ”). All amounts outstanding under the Prior Note(s) as of the date hereof are outstanding under the Loan Agreement and due and payable in accordance with the terms of the Loan Agreement and this Note.

 

[ Signature Page Follows ]

 

 

 

 

 

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IN WITNESS WHEREOF , this Note is executed as of the date set forth above.

 

 

COLONIAL AUTO FINANCE, INC. ,

an Arkansas corporation

 

 

By: _ /s/ Vickie D. Judy _________________

Name: Vickie D. Judy

Title: Secretary

 

 

 

 

 

Colonial Revolver Note

Signature Page