EXHIBIT 10.4
GUARANTY
GUARANTY (this "Guaranty") dated August 10, 2000 made by each
of the entities listed on the signature pages hereto, jointly and severally,
(each referred to individually herein as a "Guarantor," and collectively, the
"Guarantors"), in favor of FORD MOTOR CREDIT COMPANY (the "Agent"), as agent for
the lenders (the "Lenders") under the Credit Agreement defined below.
Capitalized terms used herein and not otherwise defined herein shall have the
respective meanings given to such terms in the Credit Agreement defined below.
PRELIMINARY STATEMENTS
WHEREAS, pursuant to the terms of a certain Credit Agreement dated
August 10, 2000, the Lenders extended to Sonic Automotive, Inc., a Delaware
corporation, and the entity which exercises control over the Guarantors
("Borrower"), a revolving credit facility in an amount not to exceed
$500,000,000.00 (as such agreement may be amended, restated, supplemented,
refinanced, increased or otherwise modified from time to time, the "Credit
Agreement"); and
WHEREAS, the Credit Agreement is evidenced by the Notes as defined in
the Credit Agreement (the "Notes"); and
WHEREAS, the Credit Agreement is evidenced by the Notes as defined in
the Credit Agreement (the "Notes"); and
WHEREAS, it is a condition precedent to the making of loans under the
Credit Agreement, that each Guarantor executes and delivers this Guaranty;
NOW, THEREFORE, in consideration of the premises and in order to induce
each Lender to make Advances under the Credit Agreement, each Guarantor hereby
agrees as follows:
Section 1. Guaranty. (a) Each Guarantor hereby unconditionally and
irrevocably guarantees the punctual payment when due, whether at stated
maturity, by acceleration or otherwise, of all obligations of the Borrower now
or hereafter existing under the Credit Agreement and the Note, whether for
principal, interest, fees, expenses or otherwise (such obligations being the
"Guaranteed Obligations"), and agrees to pay any and all expenses (including
reasonable counsel fees and expenses) incurred by the Agent or the Lenders in
enforcing any rights under this Guaranty. Without limiting the generality of the
foregoing, Guarantor's liability shall extend to all amounts that constitute
part of the Guaranteed Obligations and would be owed by Borrower to any Lender
but for the fact that they are unenforceable or not allowable due to the
existence of a bankruptcy, reorganization or similar proceeding involving
Borrower.
Section 2. Guaranty Absolute. Guarantor guarantees that the Guaranteed
Obligations will be paid strictly in accordance with the terms of the Credit
Agreement, regardless of any law,
regulation or order now or hereafter in effect in any jurisdiction affecting any
of such terms or the rights of the Agent or the Lenders with respect thereto.
The obligations of Guarantor under this Guaranty are independent of the
Guaranteed Obligations or any other obligations of any other party under the
Credit Agreement, and a separate action or actions may be brought and prosecuted
against Guarantor to enforce this Guaranty, irrespective of whether any action
is brought against Borrower or any other party or whether Borrower or any other
party is joined in any such action or actions. The liability of Guarantor under
this Guaranty shall be irrevocable, absolute and unconditional irrespective of,
and Guarantor hereby irrevocably waives any defenses it may now or hereafter
have in any way relating to, any or all of the following:
(a) any lack of validity or enforceability of the Credit
Agreement or any agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Guaranteed Obligations, or any
other amendment or waiver of or any consent to departure from the
Credit Agreement, including, without limitation, any increase in the
Guaranteed Obligations resulting from the extension of additional
credit to Borrower or otherwise;
(c) any taking, exchange, release or non-perfection of any
collateral, or any taking, release or amendment or waiver of or consent
to departure from any other guaranty, for all or any of the Guaranteed
Obligations;
(d) any manner of application of collateral, or proceeds
thereof, to all or any of the Guaranteed Obligations, or any manner of
sale or other disposition of any collateral for all or any of the
Guaranteed Obligations under the Credit Agreement or any other assets
of Borrower; or
(e) any change, restructuring or termination of the corporate
structure or existence of Borrower.
This Guaranty shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Guaranteed Obligations is rescinded
or must otherwise be returned by the Agent or any Lender or any other person
upon the insolvency, bankruptcy or reorganization of Borrower or otherwise, all
as though such payment had not been made.
Section 3. Waivers and Acknowledgments. (a) Guarantor hereby waives
promptness, diligence, notice of acceptance and any other notice with respect to
any of the Guaranteed Obligations and this Guaranty and any requirement that
Agent or any Lender protect, secure, perfect or insure any lien or any property
subject thereto or exhaust any right or take any action against Borrower or any
other person or any collateral.
(b) Guarantor hereby waives any right to revoke this Guaranty,
and acknowledges that this Guaranty is continuing in nature and applies to all
Guaranteed Obligations, whether existing now or in the future.
(c) Guarantor acknowledges that it will receive substantial
direct and indirect benefits from the financing arrangements contemplated by the
Credit Agreement and that the waivers set forth in this Section 3 are knowingly
made in contemplation of such benefits.
Section 4. Subrogation. Guarantor will not exercise any rights that it
may now or hereafter acquire against the Borrower that arise from the existence,
payment, performance or enforcement of the Guarantor's Obligations under this
Guaranty, including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution or indemnification and any right to
participate in any claim or remedy of the Agent or any Lender against Borrower
or any collateral, whether or not such claim, remedy or right arises in equity
or under contract, statute or common law, including, without limitation, the
right to take or receive from Borrower directly or indirectly, in cash or other
property or by set-off or in any other manner, payment or security on account of
such claim, remedy or right, unless and until all of the Guaranteed Obligations
and all other amounts payable under this Guaranty shall have been paid in full
in cash in accordance with the terms of the Credit Agreement. If any amount
shall be paid to Guarantor in violation of the preceding sentence at any time
prior to the payment in full in cash of the Guaranteed Obligations and all other
amounts payable under this Guaranty, such amount shall be held in trust for the
benefit of the Agent and each Lender and shall forthwith be paid to Agent to be
credited and applied to the Guaranteed Obligations and all other amounts payable
under this Guaranty, whether matured or unmatured, in accordance with the terms
of the Credit Agreement, or to be held as collateral for any Guaranteed
Obligations or other amounts payable under this Guaranty thereafter arising. If
(i) Guarantor shall make payment to the Agent or any Lender of all or any part
of the Guaranteed Obligations, (ii) all of the Guaranteed Obligations and all
other amounts payable under this Guaranty shall be paid in full in cash and
(iii) the Credit Agreement shall have terminated in accordance with its own
terms, Agent and the Lenders will, at the Guarantors' request and expense,
execute and deliver to the Guarantors appropriate documents, without recourse
and without representation or warranty, necessary to evidence the transfer by
subrogation to the Guarantor of an interest in the Guaranteed Obligations
resulting from such payment by the Guarantor.
Section 5. Representations and Warranties. Guarantor hereby represents
and warrants as follows:
(a) Guarantor (i) is a duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization,
(ii) is duly qualified and in good standing in each other jurisdiction
in which it owns or leases property or in which the conduct of its
business requires it to so qualify or be licensed except where the
failure to so qualify or be licensed would not have a material adverse
effect on the business or properties, taken as a whole, or the
condition, financial or otherwise, of Guarantor (a "Material Adverse
Effect"), and (iii) has all requisite power and authority to own or
lease and operate its properties and to carry on its business as now
conducted and as proposed to be conducted.
(b) The execution, delivery and performance by Guarantor of
this Guaranty are within Guarantor's powers, have been duly authorized
by all necessary corporate action, and do not (i) contravene
Guarantor's charter or bylaws or similar organizational documents, (ii)
violate any law (including, without limitation, the Securities Exchange
Act of 1934 and the Racketeer Influenced and Corrupt Organizations
Chapter of the
Organized Crime Control Act of 1970), rule, regulation (including,
without limitation, Regulations G, T, U and X of the Board of Governors
of the Federal Reserve System), order, writ, judgment, injunction,
decree, determination or award, (iii) conflict with or result in the
breach of, or constitute a default under, any loan agreement, contract,
indenture, mortgage, deed of trust, lease or other instrument binding
on or affecting Guarantor, any of its subsidiaries or any of its or
their properties, the effect of which conflict, breach or default is
reasonably likely to have a Material Adverse Effect, or (iv) except for
the liens created under the Credit Agreement, result in or require the
creation or imposition of any lien upon or with respect to any of the
properties of any such Guarantor or any of its subsidiaries. Guarantor
is not in violation of any such law, rule, regulation, order, writ,
judgment, injunction, decree, determination or award, or in breach of
any such contract, loan agreement, indenture, mortgage, deed of trust,
lease or other instrument, the violation or breach of which would be
reasonably likely to have a Material Adverse Effect.
(c) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body
or any other third party is required for (i) the due execution,
delivery, recordation, filing or performance by Guarantor of this
Guaranty, and (ii) the exercise by either Lender of its rights under
this Guaranty.
(d) This Guaranty has been duly executed and delivered by
Guarantor. This Guaranty is the legal, valid and binding obligation of
Guarantor, enforceable against Guarantor in accordance with its terms
except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws relating to or limiting
creditors' rights or by equitable principles generally.
(e) There are no conditions precedent to the effectiveness of
this Guaranty that have not been satisfied or waived.
(f) Guarantor has, independently and without reliance upon the
Lender, and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into
this Guaranty.
Section 6. Amendments, Etc. Except as otherwise provided in Section 7.1
(b) of the Credit Agreement, no amendment or waiver of any provision of this
Guaranty and no consent to any departure by Guarantor therefrom shall in any
event be effective unless the same shall be in writing and signed by the
Required Lenders (as defined in the Credit Agreement), and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given.
Section 7. Notices, Etc. All notice and other communications provided
for hereunder shall be in writing (including telegraphic, telecopy or telex
communication) and mailed, telegraphed, telecopied, telexed or delivered by
overnight courier of nationally recognized standing to it, if to any Guarantor,
addressed to 5401 East Independence Boulevard, P.O. Box 18747, Charlotte, North
Carolina 28218, if to the Agent, at its address specified in the Credit
Agreement, or as to any party, at such other address as shall be designated by
such party in a written notice to each other party complying as to delivery with
the terms of this Section 7. All such notices and other communications shall,
when mailed, telecopied, telegraphed, telexed or
sent by courier, be effective when deposited in the mails, delivered to the
telegraph company, transmitted by telecopier, confirmed by telex answerback or
delivered to the overnight courier, respectively, addressed as aforesaid.
Section 8. No Waiver, Remedies. No failure on the part of either Lender
to exercise, and no delay in exercising, any right hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
Section 9. Indemnification. Without limitation on any other Guaranteed
Obligations of Guarantor or remedies of Agent or the Lenders under this
Guaranty, Guarantor shall, to the fullest extent permitted by law, indemnify,
defend and save and hold harmless the Agent and each Lender from and against,
and shall pay on demand, any and all losses, liabilities, damages, costs,
expenses and charges (including the reasonable fees and disbursement of the
Agent's or any Lender's in-house and external legal counsel) suffered or
incurred by the Agent or a Lender as a result of any failure of any Guaranteed
Obligations to be the legal, valid and binding obligations of Borrower
enforceable against Borrower in accordance with their terms.
Notwithstanding anything else in this Guaranty to the contrary, no
party shall have any obligation to reimburse any person for attorneys' fees and
expenses unless such fees and expenses are (i) reasonable in amount, (ii)
determined without reference to any statutory presumption and (iii) calculated
using the actual time expended and the standard hourly rate for the attorneys
and paralegals performing the tasks in question and the actual out-of-pocket
expenses incurred.
Section 10. Continuing Guaranty. This Guaranty is a continuing guaranty
and shall (a) remain in full force and effect until the later of the payment in
full in cash of the Guaranteed Obligations and all other amounts payable under
this Guaranty and the date the Credit Agreement shall have terminated in
accordance with its own terms, (b) be binding upon each Guarantor, its
successors and assigns, and (c) inure to the benefit of and be enforceable by
any Lender and its successors, transferees and assigns Without limiting the
generality of the foregoing clause (c), any Lender may assign or otherwise
transfer all or any portion of its rights and obligations under the Credit
Agreement to any other person or entity, and such other person or entity shall
thereupon become vested with all the benefits in respect thereof granted to such
Lender herein or otherwise subject, however to the provisions of Article VII of
the Credit Agreement.
Section 11. Governing Law; Jurisdiction. This Guaranty shall be
governed by, and construed in accordance with, the laws of the State of North
Carolina.
IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to
be duly executed under seal and delivered by its officer thereunto duly
authorized as of the date first above written.
each of the entities listed on the remainder
of this page and on the following three pages
By: /s/ Theodore M. Wright (SEAL)
-------------------------------
Name: Theodore M. Wright
Title: Vice President
SONIC - MONTGOMERY FLM, INC.,
COBB PONTIAC-CADILLAC, INC.,
ROYAL MOTOR COMPANY, INC.,
CAPITAL CHEVROLET AND IMPORTS, INC.,
SONIC AUTOMOTIVE - 21699 U.S. HWY 19 N., INC.,
HMC FINANCE ALABAMA, INC.
SONIC AUTOMOTIVE OF GEORGIA, INC.,
SONIC AUTOMOTIVE 5260 PEACHTREE
INDUSTRIAL BLVD., LLC,
FRONTIER OLDSMOBILE-CADILLAC, INC.,
MARCUS DAVID CORPORATION,
SONIC AUTOMOTIVE - 9103 E.
INDEPENDENCE, NC, LLC,
SONIC CHRYSLER-PLYMOUTH-JEEP, LLC,
SONIC DODGE, LLC,
TOWN AND COUNTRY FORD, INCORPORATED,
SONIC AUTOMOTIVE-3700 WEST BROAD
STREET, COLUMBUS, INC.,
SONIC AUTOMOTIVE-1455 AUTOMALL DRIVE,
COLUMBUS, INC.,
SONIC AUTOMOTIVE-1495 AUTOMALL DRIVE,
COLUMBUS, INC.,
SONIC AUTOMOTIVE-4000 WEST BROAD
STREET, COLUMBUS, INC.,
SONIC AUTOMOTIVE-1500 AUTOMALL
DRIVE, COLUMBUS, INC.,
SONIC AUTOMOTIVE-1400 AUTOMALL DRIVE,
COLUMBUS, INC.,
FORT MILL CHRYSLER-PLYMOUTH-DODGE,
INC.,
SONIC AUTOMOTIVE 2752 LAURENS RD.,
GREENVILLE, INC.,
SONIC AUTOMOTIVE 2424 LAURENS RD.,
GREENVILLE, INC.,
TOWN AND COUNTRY CHRYSLER-PLYMOUTH-
JEEP OF ROCK HILL, INC.,
SONIC AUTOMOTIVE OF CHATTANOOGA, LLC,
SONIC AUTOMOTIVE OF NASHVILLE, LLC,
SONIC AUTOMOTIVE - 6025
INTERNATIONAL DRIVE, LLC,
TOWN AND COUNTRY CHRYSLER-PLYMOUTH-
JEEP, LLC,
TOWN AND COUNTRY DODGE OF
CHATTANOOGA, LLC,
TOWN AND COUNTRY JAGUAR, LLC,
TOWN AND COUNTRY FORD OF CLEVELAND,
LLC,
SONIC - 2185 CHAPMAN RD., CHATTANOOGA,
LLC,
SONIC OF TEXAS, INC.,
SONIC - WILLIAMS IMPORTS, INC.,
SONIC - WILLIAMS BUICK, INC.,
SONIC - WILLIAMS CADILLAC, INC.,
SONIC - WILLIAMS MOTORS, LLC,
SONIC - NEWSOME CHEVROLET WORLD, INC.,
SONIC - NEWSOME OF FLORENCE, INC.,
SONIC - CLASSIC DODGE, INC.
SONIC - ROCKVILLE MOTORS, INC.,
SONIC - ROCKVILLE IMPORTS, INC.,
SONIC - MANHATTAN WALDORF, INC.,
SONIC - MANHATTAN FAIRFAX, INC.,
SONIC - NORTH CHARLESTON, INC.,
SONIC AUTOMOTIVE - 5585 PEACHTREE
INDUSTRIAL BLVD., LLC,
SONIC - NORTH CHARLESTON DODGE, INC.,
VILLAGE IMPORTED CARS, INC.,
FirstAmerica Automotive, Inc.,
FA Service Corporation,
FAA Auto Factory, Inc.,
FAA Beverly Hills, Inc.,
FAA Capitol N, Inc.,
FAA Concord H, Inc.,
FAA Concord N, Inc.,
FAA Concord T, Inc.,
FAA Dealer Services, Inc.,
FAA Dublin N, Inc.,
FAA Marin D, Inc.,
FAA Poway D, Inc.,
FAA Poway G, Inc.,
FAA San Bruno, Inc.,
FAA Serramonte H, Inc.,
FAA Serramonte L, Inc.,
FAA Serramonte, Inc.,
FAA Stevens Creek, Inc.,
FAA Woodland Hills VW, Inc.,
Smart Nissan, Inc.,
FAA Torrance CPJ, Inc.,
FAA Dublin VWD, Inc.,
Kramer Motors Incorporated,
FAA Santa Monica V, Inc.,
FAA Las Vegas H, Inc.,
Lucas Dealership Group, Inc.,
Windward, Inc.,
Autobahn, Inc.,
Don Lucas International, Inc.,
FAA Holding Corp.,
Franciscan Motors, Inc.,
Santa Clara IMPORTED CARS, Inc.,
Stevens Creek Cadillac, Inc.,
FAA MARIN F, INC.,
FAA POWAY H, INC.,
FAA POWAY T, INC.,
FAA MARIN LR, INC.,
SONIC-RIVERSIDE, INC.,
SONIC-GLOVER, INC., and
RIVERSIDE NISSAN, INC.,
SPEEDWAY CHEVROLET, INC.
FORT MILL FORD, INC.,
FREEDOM FORD, INC.,
SONIC AUTOMOTIVE - CLEARWATER, INC.,
SONIC AUTOMOTIVE COLLISION CENTER OF
CLEARWATER, INC.,
SONIC AUTOMOTIVE - 1919 N. DIXIE HWY.,
NSB, INC.,
SONIC AUTOMOTIVE - 1307 N. DIXIE HWY.,
NSB, INC.,
SONIC AUTOMOTIVE- 1720 MASON AVE., DB,
INC.,
SONIC AUTOMOTIVE - 3741 S. NOVA RD.,
PO, INC.,
SONIC AUTOMOTIVE 241 RIDGEWOOD AVE.,
HH, INC.,
SONIC AUTOMOTIVE - 6008 N. DALE MABRY,
FL, INC.,
SONIC AUTOMOTIVE OF NEVADA, INC.,
SONIC AUTOMOTIVE OF TENNESSEE, INC.,
SONIC AUTOMOTIVE - BONDESEN, INC.,
SONIC - LLOYD PONTIAC - CADILLAC, INC.,
SONIC - LLOYD NISSAN, INC.,
SONIC - SUPERIOR OLDSMOBILE, LLC,
SONIC - SHOTTENKIRK, INC.,
SONIC - INTEGRITY DODGE LV, LLC,
SONIC - VOLVO LV, LLC,
SONIC - FM AUTOMOTIVE, LLC,
SONIC - FM, INC.,
SONIC - FM VW, INC.,
SONIC - FM NISSAN, INC.,
SONIC - FREELAND, INC., and
SONIC AUTOMOTIVE - 1720 MASON AVE., DB,
LLC
FREEDOM FORD, INC.
SONIC AUTOMOTIVE SERVICING COMPANY, LLC
SONIC AUTOMOTIVE F & I, LLC
SONIC - RIVERSIDE AUTO FACTORY, INC.
SOUTH CAROLINA AUTOMOTIBLE ENTERPRISES INCORPORATED
TRANSCAR LEASING, INC.
SONIC AUTOMOTIVE - 2490 SOUTH LEE
HIGHWAY, L.L.C.
SONIC AUTOMOTIVE OF TEXAS, L.P.,
SONIC AUTOMOTIVE-4701 I-10 EAST,
TX, L.P.,
SONIC AUTOMOTIVE - 3401 N. MAIN, TX, L.P.,
SONIC AUTOMOTIVE - 5221 I-10 EAST, TX, L.P.,
SONIC - SAM WHITE NISSAN, L.P.,
SONIC - LUTE RILEY, L.P.,
SONIC - READING, L.P., and
SONIC - CAMP FORD, L.P.,
SONIC - DALLAS AUTO FACTORY, L.P.
By: Sonic of Texas, Inc., a Texas corporation,
as General Partner
By: /s/ Theodore M. Wright (SEAL)
-------------------------------
Name: Theodore M. Wright
Title: Vice President
SONIC PEACHTREE INDUSTRIAL BLVD., L.P., and
SONIC - GLOBAL IMPORTS, L.P.
By: Sonic Automotive of Georgia, Inc.,
a Georgia corporation, as General Partner
By: /s/ Theodore M. Wright (SEAL)
----------------------------
Name: Theodore M. Wright
Title: Vice President