DOMESTIC SUBSIDIARY GUARANTY
Exhibit 10.3
THIS DOMESTIC SUBSIDIARY GUARANTY (this “Guaranty”), dated as of May 23, 2011, is
among ▇▇▇▇▇▇ EXPRESS CORPORATION, a Delaware corporation (the “Company”), each of the
Subsidiary Guarantors party hereto (each, an “Initial Subsidiary Guarantor”), any other
Person (as defined in the Credit Agreement referred to below) which may become a Subsidiary
Guarantor hereunder pursuant to a duly executed joinder agreement in the form attached as
Exhibit A hereto (each an “Additional Subsidiary Guarantor”; each Initial
Subsidiary Guarantor or Additional Subsidiary Guarantor is referred to herein as a “Subsidiary
Guarantor”, and they are referred to collectively as the “Subsidiary Guarantors”) 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 (together with the Company, each a “Borrower”
and collectively, the “Borrowers”), each Lender from time to time party thereto, Bank of
America, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer, ▇▇▇▇▇▇▇ Lynch, Pierce,
▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, as lead arranger and joint book manager, and each of the ▇▇▇▇▇
Fargo Securities, LLC, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, 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 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. Each Subsidiary Guarantor is a Domestic
Subsidiary of the Company and acknowledges that it has derived and will derive substantial
benefit from the making of the Loans by the Lenders to the Borrowers and the issuance of the
Letters of Credit by the L/C Issuer. As consideration therefor, and 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 Borrowers, each Subsidiary Guarantor is willing to execute and deliver this Guaranty.
Accordingly, the parties hereto agree as follows:
Section 1. Guarantee. Each Subsidiary Guarantor unconditionally guarantees,
jointly with the other Subsidiary Guarantors, and any other guarantors of the Obligations under
the Credit Agreement and other Loan Documents, 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 Obligations. To the fullest extent permitted by
applicable law, each Subsidiary Guarantor 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 each Subsidiary Guarantor’s liability hereunder.
Section 2. Obligations Not Waived. To the fullest extent permitted by applicable
law, each Subsidiary Guarantor waives presentment to, demand of payment from and protest to the
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 each Subsidiary Guarantor 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 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 the time such Subsidiary Guarantor 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 Obligations.
Section 3. Guarantee of Payment. Each Subsidiary Guarantor 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 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 Borrowers or any other Person.
Section 4. No Discharge or Diminishment of Guarantee; Payments. (a) To the fullest
extent permitted by applicable law and except as otherwise expressly provided in this Guaranty, the
obligations of each Subsidiary Guarantor 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 each Subsidiary Guarantor 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
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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 any Subsidiary Guarantor 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 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 any Subsidiary Guarantor to subrogation.
(b) All payments hereunder shall be made without setoff or counterclaim and free and clear of
and without deduction for any taxes, levies, imposts, duties, charges, fees, deductions,
withholdings, compulsory loans, restrictions or conditions of any nature now or hereafter imposed
or levied by any jurisdiction or any political subdivision thereof or taxing or other authority
therein, except to the extent expressly provided otherwise in Article III of the Credit
Agreement. If any Subsidiary Guarantor is compelled by law to make any such deduction or
withholding, it will make such deduction or withholding and comply with Article III of the
Credit Agreement (including, if applicable, by increasing the amount owed) as if it were a
Borrower. The obligations of the Subsidiary Guarantors under this Section 4(b) shall
survive the payment in full of the Obligations and the termination hereof.
Section 5. Defenses Waived. To the fullest extent permitted by applicable law, each
Subsidiary Guarantor 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 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 Borrowers, any Subsidiary Guarantor or any
other guarantor or exercise any other right or remedy available to them against any Borrower or
any other guarantor, without affecting or impairing in any way the liability of each Subsidiary
Guarantor 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, each Subsidiary Guarantor 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 each
Subsidiary Guarantor against the 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
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Administrative Agent or any other Guaranteed Party has at law or in equity against each
Subsidiary Guarantor by virtue hereof, upon the failure of a 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, each Subsidiary Guarantor 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 Obligations then
due, together with accrued and unpaid interest on such Obligations.
(b) Upon payment by each Subsidiary Guarantor of any sums to the Administrative Agent or any
Guaranteed Party as provided above, all rights of each Subsidiary Guarantor against the 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 Borrowers
or any Subsidiary now or hereafter held by each Subsidiary Guarantor is hereby subordinated in
right of payment to the prior payment in full of the Obligations. If any amount shall be paid to
any Subsidiary Guarantor 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
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 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 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) No Subsidiary Guarantor shall 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 any Subsidiary
Guarantor 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 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
Subsidiary Guarantors 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,
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insolvency, reorganization or other law affecting the rights of creditors generally, if the
obligations of any Subsidiary Guarantor 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
any Subsidiary Guarantor, 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. Each Subsidiary Guarantor assumes all responsibility for
being and keeping itself informed of the Borrowers’ financial condition and assets, all other
circumstances bearing upon the risk of nonpayment of the Obligations and the nature, scope and
extent of the risks that each Subsidiary Guarantor assumes and incurs hereunder and agrees that
none of the Administrative Agent or the other Guaranteed Parties will have any duty to advise
such Subsidiary Guarantor of information known to it or any of them regarding such circumstances
or risks.
Section 9. [Reserved].
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 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 each Subsidiary Guarantor 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 each Subsidiary Guarantor when a counterpart hereof executed on behalf of
each Subsidiary Guarantor 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 each Subsidiary Guarantor and the Administrative Agent and their respective
successors and assigns, and shall inure to the benefit of each Subsidiary Guarantor, the
Administrative Agent and the other Guaranteed Parties, and their respective successors and
assigns, except that neither the Borrowers nor any Subsidiary Guarantor 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). The Administrative Agent is hereby expressly authorized to, and agrees upon
request of the Company it will, release any Subsidiary Guarantor from its obligations hereunder in
the event that all the Equity Interests of such Subsidiary Guarantor shall be sold, transferred or
otherwise disposed of, whether by merger,
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consolidation or otherwise, to a person other than the Company or any of its Subsidiaries in
a transaction permitted by the Credit Agreement. The Administrative Agent will, at such
Subsidiary Guarantor’s expense, execute and deliver to such Subsidiary Guarantor such documents as
such Subsidiary Guarantor shall reasonably request to evidence the release of such Subsidiary
Guarantor pursuant to this Section 11.
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 any Subsidiary Guarantor 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 any Subsidiary Guarantor in any case shall entitle such Subsidiary Guarantor
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 Borrowers 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.
Section 14. Notices. All communications and notices hereunder shall be in writing
and given as provided in Section 10.02 of the Credit Agreement. All communications and
notices hereunder to each Subsidiary Guarantor shall be given to it at its respective address set
forth in Schedule I with a copy to the Company.
Section 15. Survival of Agreement; Severability. (a) All covenants, agreements,
representations and warranties made by the Borrowers and the Subsidiary Guarantors 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 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.
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(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 each Subsidiary Guarantor or its 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
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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
each Subsidiary Guarantor against any or all the obligations of such Subsidiary Guarantor 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 such Subsidiary Guarantor 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: ▇▇▇▇▇▇ EXPRESS CORPORATION |
||||
| By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇ ▇▇▇▇▇ | |||
| Title: | Chief Financial Officer | |||
| SUBSIDIARY GUARANTOR: ▇▇▇▇▇▇ EXPRESS FUELING SOLUTIONS, INC. |
||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | |||
| Title: | Treasurer | |||
| ADMINISTRATIVE AGENT: BANK OF AMERICA, N.A., as Administrative Agent |
||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ | |||
| Title: | Vice President | |||
EXHIBIT A
to the Domestic Subsidiary Guaranty
to the Domestic Subsidiary Guaranty
[Form of]
JOINDER AGREEMENT
JOINDER AGREEMENT
Reference is made to that certain Credit Agreement dated as of [_______], 2011 (as in effect
from time to time, the “Credit Agreement”) among ▇▇▇▇▇▇ EXPRESS CORPORATION, a Delaware
corporation (the “Company”), the Designated Borrowers from time to time party thereto
(together with the Company, the “Borrowers”), each Lender from time to time party thereto,
Bank of America, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer, ▇▇▇▇▇▇▇ Lynch,
Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, as lead arranger and joint book manager, and each of the ▇▇▇▇▇
Fargo Securities, LLC, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc. and RBS Citizens, National Association as a
joint lead arranger and a joint book manager. Capitalized terms used and not defined herein are
used with the meanings assigned to such terms in the Credit Agreement.
WITNESSETH:
WHEREAS, the Borrowers and the Subsidiary Guarantors party thereto entered into the Domestic
Subsidiary Guaranty (the “Guaranty”) dated as of [__________], 2011 with Bank of America,
N.A., as administrative agent (in such capacity, the “Administrative Agent”) in order to
induce the Lenders to make the Loans to and the L/C Issuer to issue Letters of Credit for the
benefit of the Borrowers and their Subsidiaries.
WHEREAS, pursuant to Section 6.12 of the Credit Agreement, certain Subsidiaries that
were not in existence on the date of the Credit Agreement are required to become a Subsidiary
Guarantor under the Guaranty by executing a joinder agreement.
WHEREAS, the undersigned Domestic Subsidiary (the “New Subsidiary Guarantor”) is
executing this joinder agreement (this “Joinder Agreement”) to the Guaranty in order to
induce the Lenders to make additional Loans and to the L/C Issuer to issue Letters of Credit, and
as consideration for the Loans previously made.
NOW, THEREFORE, the Administrative Agent, and the New Subsidiary Guarantor hereby agree as
follows:
(a) Guarantee. In accordance with Section 6.13 of the Credit
Agreement, the New Subsidiary Guarantor by its signature below becomes a Subsidiary
Guarantor under the Guaranty with the same force and effect as if originally named therein
as a Subsidiary Guarantor.
(b) Representations and Warranties. The New Subsidiary Guarantor hereby (a)
agrees to all the terms and provisions of the Guaranty applicable to it and its subsidiaries
as a Guarantor thereunder and (b) represents and warrants that the
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representations and warranties made by it as a Subsidiary Guarantor thereunder are true and correct in all
respects on and as of the date hereof. Each reference to a Subsidiary Guarantor in the
Guaranty shall be deemed to include the New Subsidiary Guarantor.
(c) Severability. In the event any one or more of the provisions contained in
this Joinder Agreement should be held invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained herein 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.
(d) Counterparts. This Joinder Agreement may be executed in counterparts, each
of which shall constitute an original. Delivery of an executed signature page to this
Joinder Agreement by facsimile transmission shall be as effective as delivery of a manually
executed counterpart of this Joinder Agreement.
(e) No Waiver. Except as expressly supplemented hereby, the Guaranty shall
remain in full force and effect.
(f) Notices. All notices, requests and demands to or upon the New Subsidiary
Guarantor, the Administrative Agent or any Lender shall be governed by the terms of
Section 10.02 of the Credit Agreement.
(g) Governing Law. THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW
YORK.
[signature pages follow]
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IN WITNESS WHEREOF, the undersigned have caused this Joinder Agreement to be duly executed and
delivered by their duly authorized officers as of the day and year first above written.
| [NEW SUBSIDIARY GUARANTOR] |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| Address for Notices: |
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A-3
| BANK OF AMERICA, N.A., as Administrative Agent |
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| By: | ||||
| Name: | ||||
| Title: | ||||
A-4
Schedule I
Address for Notices
SUBSIDIARY GUARANTORS
c/▇ ▇▇▇▇▇▇ Express Corporation
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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| Attention: | [▇▇▇▇▇▇ ▇▇▇▇▇, Senior Vice President and Chief Financial Officer] |
Telephone: [(▇▇▇) ▇▇▇-▇▇▇▇]
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇