|
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:
- - - - - - - - - -
WHEREAS, CarMax Auto Superstores, Inc. (the "Borrower"), Carmax,
Inc.
--------
(the "Company"), various financial institutions and DCSNA, as
agent (in its
-------
capacity as agent, together with any successor in such capacity,
the "Agent"),
-----
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
----------------
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
----------- --------
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
------------
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.
-1-
<PAGE>
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
--------
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
-2-
<PAGE>
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 Gu
| 
