GUARANTY AGREEMENT
Exhibit
4.3
GUARANTY
AGREEMENTTHIS
GUARANTY AGREEMENT (“Guaranty”) is made and delivered effective as of December
31, 2006, by the undersigned, AMERICA’S
CAR MART, INC.,
an
Arkansas corporation (the “Guarantor”), to BANK
OF ARKANSAS, N.A.
with its
principal office and place of business in Fayetteville, Arkansas, as agent
for
the Banks (as defined in the Credit Agreement)(“Agent”).
RECITALS
X. Xxxxx
have agreed to make a loan to COLONIAL
AUTO FINANCE, INC.
(“Borrower”), in the principal amount of FORTY MILLION DOLLARS ($40,000,000)
(the “Loan”) pursuant to the terms and conditions of the Amended and Restated
Agented Revolving Credit Agreement dated June 23, 2005, between Borrower
and
Banks (as amended, the “Credit Agreement”). Borrower’s obligation to repay the
Loan is evidenced by Borrower’s promissory notes of even date payable to the
order of Banks in the aggregate amount of $40,000,000 (separately and
collectively, the “Note”).
B. Guarantor
will benefit directly and indirectly from the making of the Loan to
Borrower.
X. Xxxxx
are
unwilling to extend the Loan to or otherwise deal with Borrower unless they
receive an unconditional and continuing guaranty from Guarantor covering
all
“Obligations” (as hereinafter defined).
AGREEMENT
For
and
in consideration of the Recitals and other good and valuable consideration,
the
receipt and sufficiency of which are hereby acknowledged by Guarantor, and
in
order to induce Banks to extend the Loan to Borrower, Guarantor hereby agrees
with Banks as follows:
Section
1. Guarantee.
Guarantor hereby absolutely and unconditionally guarantees to Banks and their
successors and assigns the due and punctual payment of all liabilities and
the
performance of all obligations of Borrower to Banks under the Note, and any
other document or instrument executed by Borrower in connection with the
Loan,
primary or secondary (whether by way of endorsement or otherwise), whether
now
existing or hereafter arising, whether arising out of contracts, torts or
otherwise, whether created directly with Banks or acquired by Banks through
assignment, endorsement or otherwise; whether matured or unmatured; whether
absolute or contingent; whether joint or several; as and when the same become
due and payable (whether by acceleration or otherwise), in accordance with
the
terms of any such instruments, accounts receivable and other security
agreements, contracts, drafts, leases or chattel paper, evidencing any such
indebtedness, obligations or liabilities, including all renewals, extensions
or
modifications thereof (all liabilities and obligations of Borrower to Banks,
including all of the foregoing, being hereinafter collectively referred to
as
the “Obligations”).
Section
2. Operation
of Guaranty.
This is
a guaranty of payment and not of collection, and Guarantor expressly waives
any
right to require that any action be brought against Borrower or any other
guarantor of the Obligations or with respect to any security therefor. If
Borrower shall default in payment or performance of any of the Obligations
when
due, Guarantor, upon written
demand
by
Banks, without notice other than such demand and without the necessity of
further action by Banks, will promptly and fully make such payments and
indemnify Banks and its officers, directors, employees, representatives,
counsel
and agents from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind whatsoever which may at any time (including without limitation
at
any time following payment of the Loan and Note) be imposed on, incurred
by or
asserted against any such person in any way relating to or arising out of
Borrower’s failure to pay its indebtedness to Banks subject to the limitations
set forth in Section
1.
All
payments by Guarantor shall be made in any coin or currency of the United
States
of America which on the respective dates of payment thereof is legal tender
for
the payment of public and private debts and which is immediately available
to
Banks at their principal offices in Arkansas (or such other place as Banks
may
designate in writing). Each default in payment or performance of the Obligations
shall give rise to a separate cause of action hereunder, and separate suits
may
be brought hereunder as each cause of action arises.
Section
3. Obligations
of Guarantor Absolute and Unconditional.
The
obligations of Guarantor hereunder shall be absolute and unconditional, shall
remain in full force and effect until (i) Guarantor has paid to Agent the
full
amount of its obligations hereunder, or (ii) all of the Obligations shall
have
been fully and indefeasibly paid and performed and shall not be impaired,
modified, released or limited by any occurrence or condition whatsoever (other
than full, final and indefeasible payment and performance of all of the
Obligations) , including without limitation (a) any compromise, settlement,
release, waiver, renewal, extension, indulgence or modification of or change
in
any of the Obligations, (b) any impairment, modification, release or limitation
of the liability of Borrower, or any security for the Obligations, or any
remedy
for the enforcement thereof, resulting from the operation of any present
or
future provision of the U. S. Bankruptcy Code, as amended, or other statute
or
from the decision of any court, (c) the assertion or exercise by Banks of
any
other rights or remedies with respect to the Obligations or its delay in
exercising or failure to assert or exercise any such rights or remedies,
(d) the
assignment or mortgaging or the purported assignment or mortgaging of any
property as security for the Obligations, or the release of any such security,
(e) any limitation of Borrower’s liability for the payment or performance of the
Obligations imposed by applicable law, (f) the extension of the time for
payment
or performance of any of the Obligations or the extension or the renewal
of any
thereof, (g) the modification or amendment (whether material or otherwise)
of
the Note, (h) the voluntary or involuntary liquidation, dissolution, sale
or
other disposition of all or substantially all of the assets, marshaling of
assets and liabilities, receivership, insolvency, bankruptcy, assignment
for the
benefit of creditors, reorganization, arrangement, composition or readjustment
of, or other similar proceeding affecting Borrower, Guarantor, any other
guarantor of the Obligations, or any of their affiliates, or any of their
assets, or the disaffirmance of this Guaranty in any such proceeding, (i)
the
release, substitution or replacement of any security for the Obligations
or any
other guaranty thereof, (j) acceptance by Banks of any payment or performance
which is defeasible, void or voidable, as a preference or otherwise, (k)
the
unenforceability, invalidity or voidability of the Note, or (1) any other
occurrence, event or circumstance which might, but for this provision,
constitute a legal or equitable discharge or defense of a guarantor or
surety.
Section
4. Waiver
of Notice, etc.
Guarantor unconditionally waives: (a) notice of any of the matters referred
to
in Section
2
hereof
except written demand for payment hereunder; (b) any demand, proof or notice
of
nonpayment of the principal of or interest on the Note or of any other default
in the due and timely payment and performance of any of the Obligations;
(c)
with respect to the Note, presentment for payment, notice of dishonor, protest
and notice of protest; (d) all other notices to which Guarantor would otherwise
be entitled; (e) the benefits of all provisions of law for a
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stay
or
delay of execution or any other remedy against Guarantor until a proceeding
be
commenced or a judgment be obtained against Borrower and be returned
unsatisfied; and (f) to the fullest extent permitted by applicable law, all
other rights and defenses of a guarantor or surety.
Section
5. No
Right of Setoff.
No act
of commission or omission of any kind or at any time upon the part of Borrower
or Banks in respect of any matter whatsoever shall in any way affect or impair
the rights of Banks to enforce any right, power or benefit of Banks under
this
Guaranty, and no setoff, claim, reduction or diminution of any obligation
or any
defense of any kind or nature which Guarantor has or may have against Borrower
or Banks shall be available to Guarantor against Banks in any suit or action
brought by Banks to enforce any right, power or benefit under this
Guaranty.
If
any
process is issued or ordered to be served upon Banks, seeking to seize
Borrower’s or Guarantor’s rights or interests in any bank accounts maintained
with Banks, the balances in any such accounts shall immediately be deemed
to
have been and shall be set off against any and all Obligations or all
obligations and liabilities of the Guarantor, as of the time of the issuance
of
any such writ or process, whether or not Borrower, Guarantor or Banks shall
then
have been served therewith.
Section
6. Extinguishment
and Waiver of Subrogation and Contribution.
(a) If
any
payment of an Obligation shall at any time be repaid by the recipient thereof
in
compliance with an order of a court having jurisdiction over any bankruptcy
or
insolvency proceedings relating to Borrower, the amount so repaid shall be
deemed not to have been paid and to be outstanding, and the obligation of
Guarantor hereunder to satisfy such Obligation shall remain in full force
and
effect.
(b) Guarantor
hereby irrevocably waives any claims or other rights which it now or hereafter
acquire against Borrower that arise from the existence or performance of
Guarantor’s obligations under this Guaranty including, without limitation, any
right of subrogation, reimbursement, exoneration, contribution, indemnification,
any right to participate in any claim or remedy of Banks against Borrower
or any
security or collateral which Banks now has or hereafter acquires, whether
or not
such claim, remedy or right arises in equity or under contract, statute or
common law, by any payment made hereunder or otherwise including, without
limitation, the right to take or receive from Borrower, directly or indirectly,
in cash or other property or by setoff or in any other manner, payment or
security on account of such claim or other rights. Guarantor hereby irrevocably
agrees that it will not, until the Obligations are paid in full, exercise
any
rights which it may acquire by way of contribution under this Guaranty, by
any
payment made hereunder or otherwise including, without limitation, the right
to
take or receive from any other guarantor, directly or indirectly, in cash
or
other property or by setoff or in any other manner, payment or security on
account of such contribution rights. If any amount shall be paid to Guarantor
in
violation of the preceding sentences and the Obligations shall not have been
paid in full, such amount shall be deemed to have been paid to Guarantor
for the
benefit of, and held in trust for the benefit of, Banks and shall forthwith
be
paid to Banks to be credited and applied upon the Obligations, whether matured
or unmatured.
Section
7. Due
Diligence.
Guarantor acknowledges and represents that it has relied upon its own due
diligence in making its own independent appraisal of Borrower and its business,
affairs and financial condition, and will continue to be responsible for
making
its own independent
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appraisal
of such matters, and has not relied upon and will not hereafter rely upon
Banks
for information for such appraisal or other assessment or review and, further,
will not rely upon any such information which may now or hereafter be prepared
by or for Banks for any appraisals regarding Borrower.
Section
8. Events
of Default.
The
occurrence of any Event of Default defined in the Credit Agreement shall
constitute an “Event
of
Default”
hereunder.
Section
9. Remedies.
Should
any one or more Event of Default occur and be continuing after any applicable
cure period, Banks may, at its option, enforce against Guarantor its liabilities
hereunder and exercise such other rights and remedies as may be available
to
Banks hereunder, under the Note and otherwise.
Section
10. Remedies
Cumulative.
No
right or remedy herein conferred upon Banks is intended to be exclusive of
any
other right or remedy contained herein or in the Note or in any other instrument
or document delivered pursuant to or in connection with the Note, and every
such
right or remedy contained herein and therein or now or hereafter existing
at law
or in equity, or by statute or otherwise, shall be cumulative. Banks may
pursue,
or refrain from pursuing, any remedy available to it at such times and in
such
order as it in its sole discretion shall determine, and Banks’ election as to
such remedies shall not impair any remedies against Guarantor not then
exercised.
Section
11. Modification
and Waiver.
No
modification or waiver of any provision of this Guaranty or of any document
or
instrument delivered pursuant hereto and no consent by Agent to any departure
therefrom shall be effective unless such modification or waiver shall be
in
writing and signed by a duly authorized officer of Agent, and the same shall
then be effective only for the period and on the conditions and for the specific
instances and purposes specified in such writing. No notice to or demand
on
Guarantor in any case shall entitle Guarantor to any other or further notice
or
demand in similar or other circumstances.
Section
12. Fees
and Expenses.
Guarantor shall reimburse Agent or Banks, or cause Agent or Banks to be
reimbursed, for all out of pocket costs and expenses incurred by Agent or
Banks
with respect to the documentation or administration of this Guaranty or
enforcing the terms hereof, including the reasonable fees and expenses of
Agent’s
or
Banks’ attorneys.
Section
13. Application
of Proceeds.
All
proceeds of any security or any enforcement action received by Banks with
respect to the Obligations may be applied by Banks to the Obligations in
such
order as Banks in its sole discretion may elect.
Section
14. Governing
Law.
This
Guaranty shall be construed in accordance with and governed by the laws of
the
State of Arkansas, without giving effect to the principles of the conflict
of
laws.
Section
15. Service
of Process.
Guarantor hereby irrevocably consents and agrees that any legal action, suit
or
proceeding arising out of or in any way in connection with this Guaranty
may be
instituted or brought in all federal and state courts located in the State
of
Arkansas, as Banks may elect and, by the execution and delivery of this
Guaranty, Guarantor hereby irrevocably and unconditionally accepts and submits
to the exclusive jurisdiction of any such courts, and to all proceedings
in such
courts. Guarantor also consents that service of process in any such action
or
proceeding may be made upon Guarantor by mailing a copy of the summons and
the
complaint to Guarantor by registered mail, return receipt requested, at the
address designated for notices to
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Guarantor
under Section
18
of this
Guaranty. Nothing in this Guaranty or elsewhere shall affect Banks’ right to
serve process in any other manner permitted by law or limit the right of
Banks
to bring actions, suits or proceedings in the courts of any other
jurisdiction.
Section
16. Waiver
of Jury Trial.
GUARANTOR HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN CONNECTION WITH ANY
LITIGATION IN ANY COURT WITH RESPECT TO, IN CONNECTION WITH OR ARISING OUT
OF
THIS GUARANTY, OR THE VALIDITY, PROTECTION, INTERPRETATION, COLLECTION OR
ENFORCEMENT OF THIS GUARANTY, OR ANY OTHER CLAIM OR DISPUTE, HOWSOEVER ARISING,
BETWEEN GUARANTOR AND BANKS.
Section
17. Captions.
The
captions of the Sections of this Guaranty are inserted for convenience only
and
shall not be deemed to constitute a part of this Guaranty.
Section
18. Notices.
Except
as otherwise expressly permitted or provided herein, all notices, requests,
demands and other communications provided for herein or in any instrument
or
document delivered pursuant hereto shall be in writing and shall be conclusively
deemed to have been received by a party hereto and to be effective on the
day on
which delivered to such party at the address set forth below (or at such
other
address as such party shall specify to the others by notice in accordance
with
the provisions of this Section) or (unless receipt thereof is expressly required
herein), if sent by registered or certified mail, postage prepaid, return
receipt requested, on the second day after the day on which mailed (or the
date
of receipt, if earlier):
TO
LENDER:
BANK
OF
ARKANSAS, N.A.
X.X.
Xxx
0000
Xxxxxxxxxxxx,
Xxxxxxxx 00000-0000
Attention:
Xxxxxxx X. Xxxx
WITH
A
COPY TO:
RIGGS,
ABNEY, NEAL, TURPEN, ORBISON & XXXXX
000
Xxxx
Xxxxx Xxxxxx
Xxxxx,
Xxxxxxxx 00000-0000
Attention:
Xxxxxx X. Xxxxxx
TO
GUARANTOR:
AMERICA’S
CAR MART, INC.
0000
Xxxxxxxxx Xxxxxx Xxxx.
Xxxxxxxxxxx,
XX 00000
Attention:
Xxxx Xxxxxxxx
WITH
A
COPY TO:
AMERICA’S
CAR-MART, INC.
251
O’Xxxxxx Xxxxx Xxxx., Xxxxx 000
Xxxxxx,
Xxxxx 00000
Attention:
X. X. Xxxxxxx, III
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Section
19. Benefit.
This
Guaranty shall be binding upon and inure to the benefit of Guarantor and
Banks
and their respective successors and assigns.
Section
20 Severability.
In case
any one or more of the provisions contained in this Guaranty, or any instrument
or other document delivered pursuant to this Guaranty, should be invalid,
illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein and therein shall
not in any way be affected or impaired thereby.
Section
21. Singular
and Plural, Etc.
As used
herein, the singular shall include the plural, the plural the singular, and
the
use of any gender shall be applicable to all genders.
Section
22. Counterparts.
This
Guaranty may be executed in any number of counterparts, and all the counterparts
taken together shall be deemed to constitute one and the same
instrument.
Section
23. Entire
Agreement.
This
Guaranty constitutes the final, exclusive and complete statement of the
agreement of the parties hereto with respect to the subject matter hereof,
and
all other prior or contemporaneous agreements with respect to the subject
matter
hereof are superseded hereby.
Section
24. Incorporation,
Good Standing, and Due Qualification.
The
Guarantor is a corporation duly incorporated, validly existing, and in good
standing under the laws of the jurisdiction of its incorporation; has the
corporate power and authority to own its assets and to transact the business
in
which it is now engaged or proposed to be engaged in; and is duly qualified
as a
foreign corporation and in good standing under the laws of each other
jurisdiction in which such qualification is required.
Section
25. Corporate
Power and Authority.
The
execution, delivery, and performance by the Guarantor of the Loan documents
to
which it is a party have been duly authorized by all necessary corporate
action
and do not and will not (1) require any consent or approval of the stockholders
of such corporation; (2) contravene such corporation’s charter or bylaws; (3)
violate any provision of any law, rule, regulation (including, without
limitation, Regulations U and X of the Board of Governors of the Federal
Reserve
System), order, writ, judgment, injunction, decree, determination, or award
presently in effect having applicability to such corporation; (4) result
in a
breach of or constitute a default under any indenture or loan or credit
agreement or any other agreement, lease, or instrument to which such corporation
is a party or by which it or its properties may be bound or affected; (5)
result
in, or require, the creation or imposition of any Lien except as contemplated
by
this Agreement, upon or with respect to any of the properties now owned or
hereafter acquired by such corporation; and (6) cause such corporation to
be in
default under any such law, rule, regulation, order, writ, judgment, injunction,
decree, determination, or award or any such indenture, agreement, lease,
or
instrument.
Section
26. Legally
Enforceable Agreement.
This
Agreement is, and each of the other Loan Documents when delivered under this
Agreement will be legal, valid, and binding obligations of the Guarantor
enforceable against the Guarantor in accordance with their respective terms,
except to the extent that such enforcement may be limited by applicable
bankruptcy, insolvency, and other similar laws affecting creditors’ rights
generally.
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Section
27. Other
Agreements.
The
Guarantor is not a party to any material indenture, loan, or credit agreement,
or to any material lease or other agreement or instrument or subject to any
charter or corporate restriction which is likely to have a Material Adverse
Effect on the business, properties, assets, operations, or conditions, financial
or otherwise, of the Guarantor or the ability of the Guarantor to carry out
its
obligations under the Loan Documents to which it is a party. The Guarantor
is
not in default in any respect in the performance, observance, or fulfillment
of
any of the obligations, covenants, or conditions contained in any agreement
or
instrument material to its business to which it is a party which is likely
to
have a Material Adverse Effect of the Guarantor.
Section
28. Litigation.
There
is no pending or to the Guarantor=s
knowledge threatened action or proceeding against or affecting the Guarantor
before any court, governmental agency, or arbitrator, which is likely to,
in any
one case or in the aggregate, materially adversely affect the financial
condition, operations, properties, or business of the Guarantor or the ability
of the Guarantor to perform its obligations under the Loan Documents to which
it
is a party.
Section
29. No
Defaults on Outstanding Judgments or Orders.
The
Guarantor has satisfied all judgments, and the Guarantor is not in default
with
respect to any judgment, writ, injunction, decree, rule, or regulation of
any
court, arbitrator, or federal, state, municipal, or other governmental
authority, commission, board, bureau, agency, or instrumentality, domestic
or
foreign; provided that noncompliance with the foregoing shall not constitute
a
Default if such noncompliance does not have a material adverse effect on
the
financial condition or operation of the Guarantor .
IN
WITNESS WHEREOF, Guarantor has hereunto set its hand and seal, and Agent
of
Banks has accepted this Guaranty, all as of the day and year first above
written.
“Guarantor”
AMERICA’S
CAR MART, INC.,
an Arkansas corporation
By
/s/ Xxxx Xxxxxxxx
Xxxx
Xxxxxxxx, Vice President
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