Exhibit 4.3
GUARANTY
AGREEMENT
THIS 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
A. Banks 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.
C. Banks 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
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
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