GUARANTY
Exhibit 10.2
THIS GUARANTY (this “Guaranty”), dated as of May 23, 2011, is between XXXXXX EXPRESS
CORPORATION, a Delaware corporation (the “Company”), and Bank of America, N.A., as
administrative agent (in such capacity, the “Administrative Agent”) for the Lenders (as
defined in the Credit Agreement referred to below).
Reference is made to that certain Credit Agreement, dated as of the date hereof (as in
effect from time to time, the “Credit Agreement”), among the Company, the Designated
Borrowers from time to time party thereto (each a “Designated Borrower” and
collectively, the “Designated Borrowers”), each Lender from time to time party thereto,
Bank of America, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer, Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated, as lead arranger and joint book manager, and each of the
Xxxxx Fargo Securities, LLC, SunTrust Xxxxxxxx Xxxxxxxx, Inc. and RBS Citizens, National
Association as a joint lead arranger and a joint book manager. Capitalized terms used and not
defined herein (including, without limitation, the term “Obligations”) are used with the
meanings assigned to such terms in the Credit Agreement.
The Lenders have agreed to make Loans to the Company and the Designated Borrowers, and the
L/C Issuer has agreed to issue Letters of Credit, in each case pursuant to, and upon the terms
and subject to the conditions specified in, the Credit Agreement. In order to induce the Lenders
to make Loans and to induce the L/C Issuer to issue Letters of Credit for the account of the
Designated Borrowers, the Company is willing to execute and deliver this Guaranty.
Accordingly, the parties hereto agree as follows:
Section 1. Guarantee. The Company unconditionally guarantees, jointly with any
other guarantors of the Guaranteed Obligations (as defined below), and severally, as a primary
obligor and not merely as a surety, for the benefit of the Administrative Agent, the Lenders,
each Cash Management Bank, each Hedge Bank, each Indemnitee and each other holder from time to
time of the Obligations, the due and punctual payment and performance of the Guaranteed
Obligations. To the fullest extent permitted by applicable law, the Company waives notice of, or
any requirement for further assent to, any agreements or arrangements whatsoever by the
Administrative Agent, the Lenders, and each other Indemnitee or other Persons to whom any part of
the Obligations may be owed (each a “Guaranteed Party” and collectively, the
“Guaranteed Parties”), with any other person pertaining to the Obligations, including
agreements and arrangements for payment, extension, renewal, subordination, composition,
arrangement, discharge or release of the whole or any part of the Obligations, or for the
discharge or surrender of any or all security, or for the compromise, whether by way of
acceptance of part payment or otherwise, and, to the fullest extent permitted by applicable law,
the same shall in no way impair the Company’s liability hereunder. For the purposes of this
Guaranty, “Guaranteed Obligations” shall mean all Loans and other Obligations owing at any time
by each Designated Borrower from time to time under the Credit Agreement or any other Loan
Document.
Section 2. Obligations Not Waived. To the fullest extent permitted by applicable
law, the Company waives presentment to, demand of payment from and protest to the Designated
Borrowers or any other Person of any of the Obligations, and also waives notice of acceptance of
its guarantee, notice of protest for nonpayment and all other formalities. To the fullest extent
permitted by applicable law, the guarantee of the Company hereunder shall not be affected by (a)
the failure of any Person to assert any claim or demand or to enforce or exercise any right or
remedy against the Designated Borrowers or any guarantor under the provisions of the Credit
Agreement, any other Loan Document or otherwise; (b) any extension, renewal or increase of or in
any of the Obligations; (c) any rescission, waiver, amendment or modification of, or any release
from, any of the terms or provisions of this Guaranty, the Credit Agreement, any other Loan
Document, any guarantee or any other agreement or instrument, including with respect to any
guarantor under the Loan Documents; (d) the fact that any obligor of any of the Obligations was
not such an obligor at such time the Company became party to this Guaranty; or (e) the failure or
delay of any Guaranteed Party to exercise any right or remedy against any Loan Party or any other
guarantor of the Guaranteed Obligations.
Section 3. Guarantee of Payment. The Company further agrees that its guarantee
constitutes a guarantee of payment and performance when due and not of collection, and, to the
fullest extent permitted by applicable law, waives any right to require that any resort be had by
the Administrative Agent or any other Guaranteed Party to any security held for payment of the
Guaranteed Obligations or to any balance of any deposit account or credit on the books of the
Administrative Agent or any other Guaranteed Party in favor of the Designated Borrowers or any
other Person.
Section 4. No Discharge or Diminishment of Guarantee; Payments. To the fullest
extent permitted by applicable law and except as otherwise expressly provided in this Guaranty, the
obligations of the Company hereunder shall not be subject to any reduction, limitation, impairment
or termination for any reason (other than the indefeasible payment in full in cash of the
Obligations (other than contingent indemnification obligations), the termination of all Commitments
and the Cash Collateralization of all L/C Obligations in accordance with the terms of the Credit
Agreement), including any claim of waiver, release, surrender, alteration or compromise of any of
the Obligations, and shall not be subject to any defense (other than a defense of payment) or
setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality
or unenforceability of the Obligations or otherwise. Without limiting the generality of the
foregoing, the obligations of the Company hereunder shall, to the fullest extent permitted by
applicable law, not be discharged or impaired or otherwise affected by the failure of the
Administrative Agent or any other Guaranteed Party to assert any claim or demand or to enforce any
remedy under the Credit Agreement, any other Loan Document, any guarantee or any other agreement or
instrument, by any amendment, waiver or modification of any provision of the Credit Agreement or
any other Loan Document or other agreement or instrument, by any default, failure or delay, willful
or otherwise, in the performance of the Obligations, or by any other act, omission or delay to do
any other act that may or might in any manner or to any extent vary the risk of any guarantor or
that would otherwise operate as a discharge of the Company as a matter of law or equity (other than
the indefeasible payment in full in cash of all the Obligations (other than contingent
indemnification obligations), the termination of all
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Commitments and the Cash Collateralization of all L/C Obligations in accordance with the terms
of the Credit Agreement) or which would impair or eliminate any right of the Company to
subrogation.
Section 5. Defenses Waived. To the fullest extent permitted by applicable law, the
Company waives any defense based on or arising out of the unenforceability of the Obligations or
any part thereof from any cause or the cessation from any cause of the liability (other than the
final and indefeasible payment in full in cash of the Obligations (other than contingent
indemnification obligations), the termination of all Commitments and the Cash Collateralization of
all L/C Obligations in accordance with the terms of the Credit Agreement) of the Designated
Borrowers or any other Person. Subject to the terms of the other Loan Documents, the
Administrative Agent and the other Guaranteed Parties may, at their election, foreclose on any
security held by one or more of them by one or more judicial or nonjudicial sales, accept an
assignment of any such security in lieu of foreclosure, compromise or adjust any part of the
Obligations, make any other accommodation with the Designated Borrowers, the Company or any other
guarantor or exercise any other right or remedy available to them against any Designated Borrower
or any other guarantor, without affecting or impairing in any way the liability of the Company
hereunder except to the extent the Obligations (other than contingent indemnification obligations)
have been fully, finally and indefeasibly paid in cash. Pursuant to and to the fullest extent
permitted by applicable law, the Company waives any defense arising out of any such election even
though such election operates, pursuant to applicable law, to impair or to extinguish any right of
reimbursement or subrogation or other right or remedy of the Company against the Designated
Borrowers or any other guarantor or any security.
Section 6. Agreement to Pay; Subordination; Waiver of Subrogation; Stay of
Acceleration.
(a) In furtherance of the foregoing and not in limitation of any other right that the
Administrative Agent or any other Guaranteed Party has at law or in equity against the Company by
virtue hereof, upon the failure of a Designated Borrower or any other Loan Party to pay any
Obligation when and as the same shall become due, whether at maturity, by acceleration, after
notice of prepayment or otherwise, the Company hereby promises to and will forthwith pay, or cause
to be paid, to the Administrative Agent or such other Guaranteed Party as designated thereby in
cash an amount equal to the unpaid principal amount of such Guaranteed Obligations then due,
together with accrued and unpaid interest on such Guaranteed Obligations.
(b) Upon payment by the Company of any sums to the Administrative Agent or any Guaranteed
Party as provided above, all rights of the Company against the Designated Borrowers or any other
guarantor arising as a result thereof by way of right of subrogation, contribution, reimbursement,
indemnity or otherwise shall in all respects be subordinate and junior in right of payment to the
prior indefeasible payment in full in cash of all the Obligations (other than contingent
indemnification obligations) and the Cash Collateralization of all L/C Obligations in accordance
with the terms of the Credit Agreement. In addition, any indebtedness of the Designated Borrowers
or any of their Subsidiaries now or hereafter held by the Company is hereby subordinated in right
of payment to the prior payment in full of the
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Guaranteed Obligations. If any amount shall be paid to the Company on account of (i) any
such subrogation, contribution, reimbursement, indemnity or similar right or (ii) any such
indebtedness, in each case at any time when any Guaranteed Obligation then due and owing has not
been paid, such amount shall be held in trust for the benefit of the Guaranteed Parties and shall
forthwith be paid to the Administrative Agent to be credited against the payment of the Guaranteed
Obligations, whether matured or unmatured, in accordance with the terms of the Loan Documents.
This Section 6(b) shall not, in the absence of any continuing Event of Default, limit the
making of any loan by or to the Designated Borrowers or any of their Subsidiaries, or any payment
in respect thereof, to the extent such loan is permitted under Sections 7.02 and
7.03 of the Credit Agreement.
(c) The Company shall not exercise any right of subrogation, contribution, indemnity,
reimbursement or similar rights with respect to any payments it makes hereunder until all of the
Obligations (other than contingent indemnification obligations) have been indefeasibly paid in full
in cash, all Commitments have been terminated and all L/C Obligations have been Cash Collateralized
in accordance with the terms of the Credit Agreement. If any amounts are paid to the Company in
violation of the foregoing limitation, then such amounts shall be held in trust for the benefit of
the Guaranteed Parties and shall forthwith be paid to the Administrative Agent to reduce the amount
of the Guaranteed Obligations, whether matured or unmatured.
(d) In the event that acceleration of the time for payment of any of the Obligations is
stayed, in connection with any case commenced by or against any Loan Party or any other Person
under any Debtor Relief Laws or otherwise, all such amounts shall nonetheless be payable by the
Company immediately upon demand.
Section 7. General Limitation on Guarantee Obligations. In any action or proceeding
involving any state corporate law, or any state, federal or foreign bankruptcy, insolvency,
reorganization or other law affecting the rights of creditors generally, if the obligations of the
Company under this Guaranty would otherwise be held or determined to be void, voidable, invalid or
unenforceable, or subordinated to the claims of any other creditors, on account of the amount of
its liability under this Guaranty, then, notwithstanding any other provision to the contrary, the
amount of such liability shall, without any further action by the Company, any creditor or any
other Person, be automatically limited and reduced to the highest amount that is valid and
enforceable and not subordinated to the claims of other creditors as determined in such action or
proceeding.
Section 8. Information. The Company assumes all responsibility for being and
keeping itself informed of the Designated Borrowers’ financial condition and assets, all other
circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature,
scope and extent of the risks that the Company assumes and incurs hereunder and agrees that none
of the Administrative Agent or the other Guaranteed Parties will have any duty to advise such the
Company of information known to it or any of them regarding such circumstances or risks.
Section 9. [Reserved].
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Section 10. Termination. When all the Obligations (other than contingent indemnity
obligations) have been indefeasibly paid in full, all Commitments of the Lenders shall have
terminated and all L/C Obligations have been Cash Collateralized in accordance with the provisions
of the Credit Agreement, this Guaranty shall terminate; provided that this Guaranty shall
continue to be effective or be reinstated, as the case may be, if at any time any payment, or any
part thereof, on any Obligation is rescinded or must otherwise be restored by any Guaranteed Party
upon the bankruptcy or reorganization of a Designated Borrower, any other Loan Party or any other
guarantor or otherwise.
Section 11. Binding Effect; Several Agreement; Assignments; Releases. Whenever in
this Guaranty any of the parties hereto is referred to, such reference shall be deemed to include
the successors and assigns of such party; and all covenants, promises and agreements by or on
behalf of the Company that are contained in this Guaranty shall bind and inure to the benefit of
each party hereto and their respective successors and assigns. This Guaranty shall become
effective as to the Company when a counterpart hereof executed on behalf of the Company shall have
been delivered to the Administrative Agent and a counterpart hereof shall have been executed on
behalf of the Administrative Agent, and thereafter shall be binding upon the Company and the
Administrative Agent and their respective successors and assigns, and shall inure to the benefit
of the Company, the Administrative Agent and the other Guaranteed Parties, and their respective
successors and assigns, except that neither the Designated Borrowers nor the Company shall have
the right to assign their rights or obligations hereunder or any interest herein without the prior
written consent of the Administrative Agent and the Required Lenders (and any such attempted
assignment shall be void).
Section 12. Waivers; Amendment. (a) No failure or delay of the Administrative Agent
in exercising any power or right hereunder shall operate as a waiver thereof, nor shall any single
or partial exercise of any such right or power, or any abandonment or discontinuance of steps to
enforce such a right or power, preclude any other or further exercise thereof or the exercise of
any other right or power. The rights and remedies of the Administrative Agent hereunder and of
the other Guaranteed Parties under the other Loan Documents are cumulative and are not exclusive
of any rights or remedies that they would otherwise have. No waiver of any provision of this
Guaranty or consent to any departure by the Company therefrom shall in any event be effective
unless the same shall be permitted by subsection (b) below, and then such waiver or consent shall
be effective only in the specific instance and for the purpose for which given. No notice or
demand on the Company in any case shall entitle the Company to any other or further notice or
demand in similar or other circumstances.
(b) Neither this Guaranty nor any provision hereof may be waived, amended or modified
except pursuant to a written agreement entered into between the Company and the Administrative
Agent (with the consent of the Lenders to the extent required under the Credit Agreement).
Section 13. GOVERNING LAW. THIS GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
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Section 14. Notices. All communications and notices hereunder shall be in writing
and given as provided in Section 10.02 of the Credit Agreement.
Section 15. Survival of Agreement; Severability. (a) All covenants, agreements,
representations and warranties made by the Company herein and in the certificates or other
instruments prepared or delivered in connection with or pursuant to this Guaranty or any other Loan
Document shall be considered to have been relied upon by the Administrative Agent and the other
Guaranteed Parties and shall survive the making by the Lenders of the Loans and the issuance of the
Letters of Credit by the L/C Issuer regardless of any investigation made by the Guaranteed Parties
or on their behalf, and shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan to a Designated Borrower or any other fee or amount payable under this
Guaranty or any other Loan Document is outstanding and unpaid or the Commitments have not been
terminated or any L/C Obligations have not been Cash Collateralized in accordance with the
provisions of the Credit Agreement.
(b) In the event any one or more of the provisions contained in this Guaranty or in any other
Loan Document should be held 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 (it being understood that the invalidity of a particular
provision in a particular jurisdiction shall not in and of itself affect the validity of such
provision in any other jurisdiction). The parties shall endeavor in good-faith negotiations to
replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect
of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.
Section 16. Counterparts. This Guaranty may be executed in counterparts, each of
which shall constitute an original, but all of which when taken together shall constitute a single
contract, and shall become effective as provided in Section 11. Delivery of an executed
signature page to this Guaranty by facsimile transmission shall be as effective as delivery of a
manually executed counterpart of this Guaranty.
Section 17. Rules of Interpretation. The rules of interpretation specified in
Section 1.02 of the Credit Agreement shall be applicable to this Guaranty.
Section 18. Jurisdiction; Consent to Service of Process. (a) Each party hereto
hereby irrevocably and unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of any New York State court or federal court of the United States of America sitting
in New York City, and any appellate court from any thereof, in any action or proceeding arising
out of or relating to this Guaranty or the other Loan Documents, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or proceeding may be heard
and determined in such state court or, to the extent permitted by law, in such federal court.
Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. Nothing in this Guaranty shall affect any right that the Administrative
Agent or any other Guaranteed Party may otherwise have to bring any action or proceeding relating
to this Guaranty or the other Loan Documents against the Company or its
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properties in the courts of any jurisdiction.
(b) Each party hereto hereby irrevocably and unconditionally waives, to the fullest extent
it may legally and effectively do so, any objection that it may now or hereafter have to the
laying of venue of any suit, action or proceeding arising out of or relating to this Guaranty or
the other Loan Documents in any New York State or federal court. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such court.
(c) Each party to this Guaranty irrevocably consents to service of process in the manner
provided for notices in Section 14. Nothing in this Guaranty will affect the right of any
party to this Guaranty to serve process in any other manner permitted by law.
Section 19. Waiver of Jury Trial. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS GUARANTY OR THE
OTHER LOAN DOCUMENTS. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF
ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE
OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS GUARANTY AND THE OTHER LOAN DOCUMENTS, AS
APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION
19.
Section 20. Right of Setoff. If an Event of Default shall have occurred and be
continuing, each Guaranteed Party is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final and in whatever currency) at any time held and other
Indebtedness at any time owing by such Guaranteed Party to or for the credit or the account of the
Company against any or all the obligations of the Company now or hereafter existing under this
Guaranty and the other Loan Documents held by such Guaranteed Party, irrespective of whether or
not the Administrative Agent or any Guaranteed Party shall have made any demand under this
Guaranty or any other Loan Document and although such obligations may be contingent, unmatured,
secured or unsecured or are owed to a branch or office of such Guaranteed Party different from the
branch or office holding such deposit or obligated on such Indebtedness. Each Guaranteed Party
agrees promptly to notify the Company and the Administrative Agent after any such setoff and
application; provided that failure to give such notice shall not affect the validity of
such setoff and application. The rights of each Guaranteed Party under this Section 20
are in addition to other rights and remedies (including other rights of setoff) which such
Guaranteed Party may have.
[signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have duly executed this Guaranty as of the day and
year first above written.
| COMPANY: XXXXXX EXPRESS CORPORATION |
||||
| By: | /s/ Xxxxxx Xxxxx | |||
| Name: | Xxxxxx Xxxxx | |||
| Title: | Chief Financial Officer | |||
| ADMINISTRATIVE AGENT: BANK OF AMERICA, N.A., as Administrative Agent |
||||
| By: | /s/ Xxxxxxx Xxxxxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxxxxx | |||
| Title: | Vice President | |||
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