Exhibit 10.4
GUARANTY
THIS GUARANTY dated as of May 17, 2002 is executed in favor of
DAIMLERCHRYSLER SERVICES NORTH AMERICA LLC ("DCSNA"), as Agent, and the Lender
Parties referred to below.
W I T N E S S E T H:
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WHEREAS, CarMax Auto Superstores, Inc. (the "Borrower"), Carmax, Inc.
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(the "Company"), various financial institutions and DCSNA, as agent (in its
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capacity as agent, together with any successor in such capacity, the "Agent"),
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have entered into a Credit Agreement dated as of the date hereof (as amended or
otherwise modified from time to time, the "Credit Agreement"; capitalized terms
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used but not defined herein are used as defined in the Credit Agreement),
pursuant to which such financial institutions have agreed to make extensions of
credit to the Borrower; and
WHEREAS, each of the undersigned will benefit from the extensions of
credit pursuant to the Credit Agreement and is willing to guaranty the
Liabilities (as defined below) as hereinafter set forth;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, each of the undersigned hereby
jointly and severally, unconditionally and irrevocably, as primary obligor and
not merely as surety, guarantees the full and prompt payment when due, whether
by acceleration or otherwise, and at all times thereafter, of all obligations
(monetary or otherwise) of the Borrower and the Company to each of the Agent and
each Lender Party (as defined below) under or in connection with the Credit
Agreement, the Notes, any other Loan Document and any other document or
instrument executed in connection therewith, in each case howsoever created,
arising or evidenced, whether direct or indirect, absolute or contingent, now or
hereafter existing, or due or to become due (all such obligations being herein
collectively called the "Liabilities"); provided that the liability of each of
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the undersigned hereunder shall be limited to the maximum amount of the
Liabilities which such undersigned may guaranty without violating any fraudulent
conveyance or fraudulent transfer law (plus all reasonable costs and expenses
paid or incurred by the Agent or any Lender Party in enforcing this Guaranty
against such undersigned). As used herein, "Lender Party" means each Lender
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under and as defined in the Credit Agreement and DCSNA.
Each of the undersigned agrees that if any Event of Default shall occur
under Section 11.1.4 of the Credit Agreement, and if such event shall occur at a
time when any of the Liabilities may not then be due and payable, such
undersigned will pay to the Agent for the account of the Lender Parties
forthwith the full amount which would be payable hereunder by such undersigned
if all Liabilities were then due and payable.
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To secure all obligations of each of the undersigned hereunder, the
Agent and each Lender Party shall have a lien on and security interest in and
may, without demand or notice of any kind, at any time and from time to time
when any Event of Default exists, appropriate and apply toward the payment of
such amount, in such order of application as the Agent and the Lender Parties
may elect, any and all balances, credits, deposits, accounts or moneys of or in
the name of such undersigned now or hereafter with the Agent or such Lender
Party. The Agent or the Lender Party exercising the set-off rights it has under
this paragraph shall promptly notify such undersigned thereof after making such
exercise; provided that failure to give such notice shall not affect the
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validity of the set-off.
This Guaranty shall in all respects be a continuing, irrevocable,
absolute and unconditional guaranty, and shall remain in full force and effect
(notwithstanding, without limitation, the dissolution of any of the undersigned
or that at any time or from time to time no Liabilities are outstanding) until
all Commitments have terminated and all Liabilities have been paid in full.
The undersigned further agree that if at any time all or any part of
any payment theretofore applied by the Agent or any Lender Party to any of the
Liabilities is or must be rescinded or returned by the Agent or such Lender
Party for any reason whatsoever (including the insolvency, bankruptcy or
reorganization of the Borrower, the Company or any of the undersigned), such
Liabilities shall, for the purposes of this Guaranty, to the extent that such
payment is or must be rescinded or returned, be deemed to have continued in
existence, notwithstanding such application by the Agent or such Lender Party,
and this Guaranty shall continue to be effective or be reinstated, as the case
may be, as to such Liabilities, all as though such application by the Agent or
such Lender Party had not been made.
The Agent or any Lender Party may, from time to time, at its sole
discretion and without notice to the undersigned (or any of them), take any or
all of the following actions: (a) retain or obtain a security interest in any
property to secure any of the Liabilities or any obligation hereunder, (b)
retain or obtain the primary or secondary obligation of any obligor or obligors,
in addition to the undersigned, with respect to any of the Liabilities, (c)
extend or renew any of the Liabilities for one or more periods (whether or not
longer than the original period), alter or exchange any of the Liabilities, or
release or compromise any obligation of any of the undersigned hereunder or any
obligation of any nature of any other obligor with respect to any of the
Liabilities, (d) release its security interest in, or surrender, release or
permit any substitution or exchange for, all or any part of any property
securing any of the Liabilities or any obligation hereunder, or extend or renew
for one or more periods (whether or not longer than the original period) or
release, compromise, alter or exchange any obligations of any nature of any
obligor with respect to any such property and (e) resort to the undersigned (or
any of them) for payment of any of the Liabilities when due, whether or not the
Agent or such Lender Party shall have resorted to any property securing any of
the Liabilities or any obligation hereunder or shall have proceeded against any
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other of the undersigned or any other obligor primarily or secondarily obligated
with respect to any of the Liabilities.
Each of the undersigned hereby expressly waives: (a) notice of the
acceptance by the Agent or any Lender Party of this Guaranty, (b) notice of the
existence or creation or non-payment of all or any of the Liabilities, (c)
presentment, demand, notice of dishonor, protest, and all other notices
whatsoever, and (d) all diligence in collection or protection of or realization
upon any Liabilities or any security for or guaranty of any Liabilities.
Notwithstanding any payment made by or for the account of any of the
undersigned pursuant to this Guaranty, the undersigned shall not be subrogated
to any right of the Agent or any Lender Party until such time as the Agent and
the Lender Parties shall have received final payment in cash of the full amount
of all Liabilities.
Each of the undersigned further agrees to pay all reasonable expenses
(including Attorney Costs) paid or incurred by the Agent or any Lender Party in
endeavoring to collect the Liabilities of such undersigned, or any part thereof,
and in enforcing this Guaranty against such undersigned.
The creation or existence from time to time of additional Liabilities
to the Agent or the Lender Parties or any of them is hereby authorized, without
notice to the undersigned (or any of them), and shall in no way affect or impair
the rights of the Agent or the Lender Parties or the obligations of the
undersigned under this Guaranty, including each of the undersigned's guaranty of
such additional Liabilities.
The Agent and any Lender Party may from time to time without notice to
the undersigned (or any of them), but subject to Section 13.9 of the Credit
Agreement, assign or transfer any or all of the Liabilities or any interest
therein; and, notwithstanding any such assignment or transfer or any subsequent
assignment or transfer thereof, such Liabilities shall be and remain Liabilities
for the purposes of this Guaranty, and each and every immediate and successive
assignee or transferee of any of the Liabilities or of any interest therein
shall, to the extent of the interest of such assignee or transferee in the
Liabilities, be entitled to the benefits of this Guaranty to the same extent as
if such assignee or transferee were an original Lender Party.
No delay on the part of the Agent or any Lender Party in the exercise
of any right or remedy shall operate as a waiver thereof, and no single or
partial exercise by the Agent or any Lender Party of any right or remedy shall
preclude other or further exercise thereof or the exercise of any other right or
remedy; nor shall any modification or waiver of any provision of this Guaranty
be binding upon the Agent or the Lender Parties, except as expressly set forth
in a writing duly signed and delivered on behalf of the Agent. No action of the
Agent or any Lender Party permitted hereunder shall in any way affect or impair
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the rights of the Agent or any Lender Party or the obligations of the
undersigned under this Guaranty. For purposes of this Guaranty, Liabilities
shall include all obligations of the Borrower and the Company to the Agent or
any Lender Party arising under or in connection with the Credit Agreement, any
Note, any other Loan Document or any other document or instrument executed in
connection therewith, in each case notwithstanding any right or power of the
Borrower or the Company or anyone else to assert any claim or defense as to the
invalidity or unenforceability of any such obligation, and no such claim or
defense shall affect or impair the obligations of any of the undersigned
hereunder.
Pursuant to the Credit Agreement, (a) this Guaranty has been delivered
to the Agent and (b) the Agent has been authorized to enforce this Guaranty on
behalf of itself and each of the Lender Parties. All payments by the undersigned
pursuant to this Guaranty shall be made to the Agent for the benefit of the
Lender Parties.
This Guaranty shall be binding upon the undersigned and the successors
and assigns of the undersigned; and to the extent that the Borrower, the Company
or any of the undersigned is either a partnership, limited liability company or
a corporation, all references herein to the Borrower, the Company and to the
undersigned, respectively, shall be deemed to include any successor or
successors, whether immediate or remote, to such partnership, limited liability
company or corporation. The term "undersigned" as used herein shall mean all
parties executing this Guaranty and each of them, and all such parties shall be
jointly and severally obligated hereunder.
This Guaranty shall be governed by and construed in accordance with the
laws of the State of Michigan applicable to contracts made and to be fully
performed in such State. Wherever possible, each provision of this Guaranty
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Guaranty shall be prohibited by or
invalid under such law, such provision shall be ineffective to the extent of
such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Guaranty.
This Guaranty may be executed in any number of counterparts and by the
different parties hereto on separate counterparts, and each such counterpart
shall be deemed to be an original but all such counterparts shall together
constitute one and the same Guaranty. At any time after the date of this
Guaranty, one or more additional Persons may become parties hereto by executing
and delivering to the Agent a counterpart of this Guaranty. Immediately upon
such execution and delivery (and without any further action), each such
additional Person will become a party to, and will be bound by all of the terms
of, this Guaranty.
This Guaranty may be secured by one or more security agreements or
other similar documents.
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EACH OF THE UNDERSIGNED HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE
NON-EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF MICHIGAN AND OF THE
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN FOR THE
PURPOSE OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS GUARANTY OR ANY OTHER LOAN DOCUMENT. EACH OF THE
UNDERSIGNED FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED
MAIL, POSTAGE PREPAID, TO THE ADDRESS SET FORTH OPPOSITE ITS SIGNATURE HERETO
(OR SUCH OTHER ADDRESS AS IT SHALL HAVE SPECIFIED IN WRITING TO THE AGENT AS ITS
ADDRESS FOR NOTICES HEREUNDER) OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE
STATE OF MICHIGAN. EACH OF THE UNDERSIGNED HEREBY EXPRESSLY AND IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW
OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY
SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM.
EACH OF THE UNDERSIGNED, AND (BY ACCEPTING THE BENEFITS HEREOF) EACH OF
THE AGENT AND EACH LENDER PARTY, HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN
ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS GUARANTY,
ANY OTHER LOAN DOCUMENT AND ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT
DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR
THEREWITH OR ARISING FROM ANY FINANCING RELATIONSHIP EXISTING IN CONNECTION WITH
ANY OF THE FOREGOING, AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE
TRIED BEFORE A COURT AND NOT BEFORE A JURY.
IN WITNESS WHEREOF, this Guaranty has been duly executed and delivered
as of the day and year first above written.
CARMAX AUTO SUPERSTORES WEST
COAST, INC.
By: /s/ Xxxxx X. Xxxxxxxx
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Title: Executive Vice President
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Address:
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Attention:
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Telephone:
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Facsimile:
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KENOSHA AUTOMOTIVE, LLC
By: /s/ Xxxxx X. Xxxxxxxx
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Title: Executive Vice President
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Address:
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Attention:
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Telephone:
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Facsimile:
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CARMAX AUTO MALL, LLC
By: /s/ Xxxxx X. Xxxxxxxx
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Title: Executive Vice President
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Address:
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Attention:
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Telephone:
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Facsimile:
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CARMAX OF LAUREL, LLC
By: /s/ Xxxxx X. Xxxxxxxx
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Title: Executive Vice President
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Address:
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Attention:
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Telephone:
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Facsimile:
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S-6
Signature page for the Guaranty dated as of
May 17, 2002 in favor of DAIMLERCHRYSLER SERVICES
NORTH AMERICA LLC, as agent for the Lender Parties
referred to in such Guaranty.
The undersigned is executing a counterpart hereof for
purposes of becoming a party hereto:
[ADDITIONAL GUARANTOR]
By:
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Title:
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Address:
Attention:
Telephone:
Facsimile:
S-7
Signature page for the Guaranty dated as of
May 17, 2002 in favor of DAIMLERCHRYSLER SERVICES
NORTH AMERICA LLC, as agent for the Lender Parties
referred to in such Guaranty.
The undersigned is executing a counterpart hereof as
of November 1, 2004 for purposes of becoming a party
hereto:
CARMAX AUTO SUPERSTORES TEXAS, LP
By: /s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx, Executive Vice
President & Chief Financial Officer
Address: 0000 Xxx Xxxx
Xxxx Xxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
S-8
Signature page for the Guaranty dated as of
May 17, 2002 in favor of DAIMLERCHRYSLER SERVICES
NORTH AMERICA LLC, as agent for the Lender Parties
referred to in such Guaranty.
The undersigned is executing a counterpart hereof as
of November 1, 2004 for purposes of becoming a party
hereto:
CARMAX AUTO SUPERSTORES CALIFORNIA, LLC
By: /s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
President & Chief Financial Officer
Address: 0000 Xxx Xxxx
Xxxx Xxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
S-9
Signature page for the Guaranty dated as of
May 17, 2002 in favor of DAIMLERCHRYSLER SERVICES
NORTH AMERICA LLC, as agent for the Lender Parties
referred to in such Guaranty.
The undersigned is executing a counterpart hereof as
of November 1, 2004 for purposes of becoming a party
hereto:
CARMAX BUSINESS SERVICES, LLC
By: /s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx, Executive Vice
President & Chief Financial Officer
Address: 0000 Xxx Xxxx
Xxxx Xxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
S-10
Signature page for the Guaranty dated as of
May 17, 2002 in favor of DAIMLERCHRYSLER SERVICES
NORTH AMERICA LLC, as agent for the Lender Parties
referred to in such Guaranty.
The undersigned is executing a counterpart hereof as
of November 1, 2004 for purposes of becoming a party
hereto:
CARMAX TEXAS GENERAL PARTNER, LLC
By: /s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx, Executive Vice
President & Chief Financial Officer
Address: 0000 Xxx Xxxx
Xxxx Xxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
S-11
Signature page for the Guaranty dated as of
May 17, 2002 in favor of DAIMLERCHRYSLER SERVICES
NORTH AMERICA LLC, as agent for the Lender Parties
referred to in such Guaranty.
The undersigned is executing a counterpart hereof as
of November 1, 2004 for purposes of becoming a party
hereto:
CARMAX AUTO SUPERSTORES SERVICES, INC.
By: /s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx, Executive Vice
President & Chief Financial Officer
Address: 0000 Xxx Xxxx
Xxxx Xxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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