EXHIBIT 4.2
CONFORMED COPY
GUARANTEE AGREEMENT dated as of November 14, 2002, as amended
and restated as of December 15, 2004 (this "Agreement"), among
ABERCROMBIE & FITCH CO., a Delaware corporation ("Parent"), each
direct and indirect Subsidiary of Parent other than Abercrombie &
Fitch Management Co. (each a "Domestic Subsidiary" and, together
with Parent and any other Subsidiaries that become parties hereto as
contemplated by Section 15 hereof, referred to herein individually
as a "Guarantor" and collectively as the "Guarantors"), and NATIONAL
CITY BANK, as administrative agent (the "Agent") for the lenders
(the "Lenders") party to the Credit Agreement dated as of November
14, 2002, as amended and restated as of December 15, 2004 (as
amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among Abercrombie & Fitch Management Co. (the
"Borrower"), Parent, the Lenders party thereto and the Agent.
The Borrower, the Parent, the Lenders and the Agent are parties to the
Original Credit Agreement (such term and each other capitalized term used but
not defined herein having the meaning assigned to it in Article I of the Credit
Agreement). Such parties have amended and restated the Original Credit Agreement
in the form of the Credit Agreement, effective as of the Restatement Effective
Date and subject to satisfaction of the conditions set forth therein.
The Lenders have agreed to make loans to Borrower in accordance with
the terms of the Credit Agreement. The obligations of the Lenders to lend under
the Credit Agreement are conditioned on, among other things, the execution and
delivery by the Guarantors of a guarantee agreement in the form hereof. The
Guarantors acknowledge that they will derive substantial benefits from the
extension of credit to Borrower under the Credit Agreement. As consideration
therefor and in order to induce the Lenders to make the Loans (such term and the
other capitalized terms used herein and not otherwise defined herein having the
meanings assigned to them in the Credit Agreement), the Guarantors are willing
to execute and deliver this Agreement. Accordingly, the parties hereto agree as
follows:
SECTION 1. Each of the Guarantors unconditionally guarantees, jointly
with the other Guarantors and severally, as a primary obligor and not merely as
a surety, (a) the due and punctual payment by the Borrower of (i) the principal
of and interest on the Loans, when and as due, whether at maturity, by
acceleration, upon one or more dates set for prepayment or otherwise and (ii)
all other monetary obligations of the Borrower to the Lenders and the Agent
under the Credit Agreement and the other Loan Documents to which the Borrower is
or is to be a party and (b) the due and punctual performance of all
other obligations of the Borrower under the Credit Agreement and the other Loan
Documents (all the foregoing obligations being collectively called the
"Obligations"). Each of the Guarantors further agrees that the Obligations may
be extended or renewed, in whole or in part, without notice to or further assent
from it, and that it will remain bound upon its guarantee notwithstanding any
extension or renewal of any Obligation.
SECTION 2. Each of the Guarantors waives presentment to, demand of
payment from and protest to the Borrower of any of the Obligations, and also
waives notice of acceptance of its guarantee and notice of protest for
nonpayment. The obligations of each Guarantor hereunder shall not be affected by
(a) the failure of the Agent or any Lender to assert any claim or demand or to
enforce any right or remedy against the Borrower under the provisions of any
Loan Document or otherwise; (b) any rescission, waiver, amendment or
modification of, or any release from any of the terms or provisions of, any Loan
Document, any guarantee or any other agreement, including with respect to any
other Guarantor under this Agreement; (c) the release of any security held by
the Agent or any Lender for the Obligations or any of them; or (d) the failure
of the Agent or any Lender to exercise any right or remedy against any other
Guarantor or guarantor of the Obligations.
SECTION 3. Each of the Guarantors further agrees that its guarantee
hereunder constitutes a guarantee of payment when due and not of collection, and
waives any right to require that resort be had by the Agent or any Lender to any
security held for payment of the Obligations or to any balance of any deposit
account or credit on the books of the Agent or any Lender in favor of the
Borrower or any other person.
SECTION 4. The obligations of each Guarantor hereunder shall not be
subject to any reduction, limitation, impairment or termination for any reason,
including, without limitation, any claim of waiver, release, surrender,
alteration or compromise, and shall not be subject to any defense 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 Guarantor hereunder
shall not be discharged or impaired or otherwise affected by the failure of the
Agent or any Lender to assert any claim or demand or to enforce any remedy under
any Loan Document, any guarantee or any other agreement, by any waiver or
modification of any thereof, by any default, failure or delay, willful or
otherwise, in the performance of the Obligations, or by any other act or
omission which may or might in any manner or to any extent vary the risk of any
Guarantor or otherwise operate as a discharge of the Borrower or any Guarantor
as a matter of law or equity (other than the indefeasible payment in full of all
the Obligations).
SECTION 5. Each of the Guarantors further agrees that its guarantee
shall continue to be effective or be reinstated, as the case may be, if at any
time payment, or any part thereof, of any Obligation is rescinded or must
otherwise be restored by the Agent or any Lender upon the bankruptcy or
reorganization of the Borrower, any other Guarantor or otherwise.
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SECTION 6. In furtherance of the foregoing and not in limitation of any
other right which the Agent or any Lender has at law or in equity against any
Guarantor by virtue hereof, upon the failure of the Borrower to pay any
Obligation when and as the same shall become due, whether at maturity, by
acceleration, after notice of prepayment or otherwise, each of the Guarantors
hereby promises to and will, upon receipt of written demand by the Agent,
forthwith pay, or cause to be paid, to the Agent for distribution to the
Lenders, if and as appropriate, in cash the amount of such unpaid Obligation.
Notwithstanding any payment or payments made by a Guarantor hereunder or any
setoff or application of funds of a Guarantor by the Agent or any Lender, no
Guarantor shall be entitled to be subrogated to any of the rights of the Agent
or any Lender against the Borrower or any collateral security or guarantee or
right of offset held for the payment of the Obligations, nor shall any Guarantor
seek or be entitled to seek any contribution or reimbursement from the Borrower
in respect of payments made by such Guarantor hereunder, until all amounts owing
to the Agent or any Lender by the Borrower on account of the Obligations are
paid in full and the Commitments are terminated. If any amount shall erroneously
be paid to any Guarantor on account of such subrogation, contribution,
reimbursement, indemnity and similar rights, such amount shall be held in trust
for the benefit of the Lenders and shall forthwith be paid to the Agent to be
credited and applied to the payment of the Obligations. Any term or provision of
this Agreement to the contrary notwithstanding, the maximum aggregate amount of
the Obligations guaranteed hereunder by any Guarantor shall not exceed the
maximum amount that can be hereby guaranteed by that Guarantor without rendering
this Agreement, as it relates to such Guarantor, voidable under applicable law
relating to fraudulent conveyance or fraudulent transfer or similar laws
affecting the rights of creditors generally.
SECTION 7. Each of the Guarantors represents and warrants that (a) it
is a corporation duly organized, validly existing and in good standing under the
laws of its jurisdiction of organization, (b) the execution, delivery and
performance by it of this Agreement are within its corporate powers, have been
duly authorized by all necessary corporate and (if necessary) stockholder
action, and do not contravene, or constitute a default under, any provision of
applicable law or regulation or of its certificate of incorporation or By-Laws
or any material agreement or instrument binding upon it, and (c) this Agreement
constitutes a valid and binding agreement of such Guarantor, enforceable in
accordance with its terms, subject to the effect of applicable bankruptcy,
insolvency or similar laws affecting creditors' rights generally and equitable
principles of general applicability.
SECTION 8. The guarantees made hereunder shall survive and be in full
force and effect so long as any Obligation is outstanding and has not been
indefeasibly paid, and shall be reinstated to the extent provided in Section 5.
SECTION 9. This Agreement and the terms, covenants and conditions
hereof shall be binding upon each Guarantor and its successors and shall inure
to the benefit of the Agent and the Lenders and their respective successors and
assigns. None of the Guarantors shall be permitted to assign or transfer any of
its rights or obligations under this Agreement, except as expressly contemplated
by this Agreement.
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SECTION 10. No failure on the part of the Agent to exercise, and no
delay in exercising, any right, power or remedy hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right,
power or remedy by the Agent or any Lender preclude any other or further
exercise thereof or the exercise of any other right, power or remedy. All
remedies hereunder and under the other Loan Documents are cumulative and are not
exclusive of any other remedies provided by law. Except as provided in the
Credit Agreement, none of the Agent or the Lenders shall be deemed to have
waived any rights hereunder or under any other agreement or instrument unless
such waiver shall be in writing and signed by such parties.
SECTION 11. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF OHIO.
SECTION 12. All communications and notices hereunder shall be in
writing and given as provided in Section 9.01 of the Credit Agreement; provided
that any communication or notice hereunder to any Guarantor shall be given to it
in care of the Borrower at the address or telecopy or telex number specified in
the Credit Agreement.
SECTION 13. In case any one or more of the provisions contained in this
Agreement should be held invalid, illegal or unenforceable in any respect with
respect to any Guarantor, no party hereto shall be required to comply with such
provision with respect to such Guarantor for so long as such provision is held
to be invalid, illegal or unenforceable and the validity, legality and
enforceability of the remaining provisions contained herein, and of such
provision with respect to any other Guarantor, shall not in any way be affected
or impaired. The parties shall endeavor in good-faith negotiations to replace
any invalid, illegal or unenforceable provisions with valid provisions, the
economic effect of which come as close as possible to that of the invalid,
illegal or unenforceable provisions.
SECTION 14. This Guarantee may be released with respect to any
Subsidiary that ceases to be a Domestic Subsidiary as a result of a transaction
that is permitted by the terms of the Credit Agreement.
SECTION 15. This Agreement may be executed in two or more counterparts,
each of which shall constitute an original, but all of which, when taken
together, shall constitute but one instrument; provided that this Agreement
shall be construed as a separate agreement with respect to each Guarantor and
may be amended, modified, supplemented, waived or released with respect to any
Guarantor without the approval of any other Guarantor and without affecting the
obligations of any other Guarantor hereunder. This Agreement shall be effective
with respect to any Guarantor when a counterpart which bears the signature of
such Guarantor shall have been delivered to the Agent.
SECTION 16. 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
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INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT. 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 AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
SECTION 17. Upon execution and delivery by the Agent and any
subsequently acquired or organized Domestic Subsidiary of an instrument in the
form of Annex 1 attached hereto, such subsequently acquired or organized
Domestic Subsidiary shall become a Guarantor hereunder with the same force and
effect as if originally named as a Guarantor herein. The execution and delivery
of any such instrument shall not require the consent of any Guarantor hereunder.
The rights and obligations of each Guarantor hereunder shall remain in full
force and effect notwithstanding the addition of any new Guarantor as a party to
this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
ABERCROMBIE & FITCH CO.
by
/s/ Xxxxx X. Xxxxx
--------------------------------
Name: Xxxxx X. Xxxxx
Title: Senior Vice President and
Chief Financial Officer
ABERCROMBIE & FITCH HOLDING CORPORATION
by
/s/ Xxxxx X. Xxxx
--------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
A&F TRADEMARK, INC.
by
/s/ Xxxxx X. Xxxx
--------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
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ABERCROMBIE & FITCH FULFILLMENT COMPANY
by
/s/ Xxxxx X. Xxxx
--------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
ABERCROMBIE & FITCH DISTRIBUTION COMPANY
by
/s/ Xxxxx X. Xxxx
--------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
J.M.H. TRADEMARK, INC.
by
/s/ Xxxxx X. Xxxx
--------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
X.X. XXXXXXXXX, LLC
by
/s/ Xxxxx X. Xxxx
--------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President - Finance
of Abercrombie & Fitch Stores,
Inc. in its capacity as Sole
Manager
ABERCROMBIE & FITCH TRADING CO.
by
/s/ Xxxxx X. Xxxx
--------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President - Finance
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ABERCROMBIE & FITCH STORES, INC.
by
/s/ Xxxxx X. Xxxx
--------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
ABERCROMBIE & FITCH PROCUREMENT SERVICES,
LLC
by
/s/ Xxxxx X. Xxxx
--------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President - Finance
of Abercrombie & Fitch Trading
Co. in its capacity as Sole
Member
FAN COMPANY, LLC
by
/s/ Xxxxx X. Xxxx
--------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President - Finance
of Abercrombie & Fitch
Management Co. in its capacity
as Sole Member
A&F 2001, INC.
by
/s/ Xxxxx X. Xxxx
--------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
FITCH 2001, INC.
by
/s/ Xxxxx X. Xxxx
--------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
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A&F WEST COAST HOLDING, INC.
by
/s/ Xxxxx Xxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxx
Title: President
A&F MICHIGAN, INC.
by
/s/ Xxxxx X. Xxxx
--------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
HOLLISTER MICHIGAN, LLC
by
/s/ Xxxxx X. Xxxx
--------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President of
A&F Michigan, Inc. in its
capacity as Sole Member
HOLLISTER OHIO, LLC
by
/s/ Xxxxx X. Xxxx
--------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President of A&F
Ohio, Inc. in its capacity as
Sole Member
HOLLISTER CALIFORNIA, LLC
by
/s/ Xxxxx X. Xxxx
--------------------------------
Name: Xxxxx X. Xxxx
Title: Manager
A&F CALIFORNIA, LLC
by
/s/ Xxxxx X. Xxxx
--------------------------------
Name: Xxxxx X. Xxxx
Title: Manager
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A&F OHIO, INC.
by
/s/ Xxxxx X. Xxxx
--------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
CANOE, LLC
by
/s/ Xxxxx X. Xxxx
--------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President - Finance
of Abercrombie & Fitch
Management Co. in its capacity
as Sole Member
XXXXXXX, LLC
by
/s/ Xxxxx X. Xxxx
--------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President - Finance
of Abercrombie Co. in its
capacity as Sole Member
XXXXX NO. 925, LLC
by
/s/ Xxxxx X. Xxxx
--------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President - Finance
of Abercrombie & Fitch Stores,
Inc. in its capacity as Sole
Member
NATIONAL CITY BANK,
as Agent
by
/s/ Xxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
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ANNEX 1 to the
Guarantee Agreement
SUPPLEMENT NO. dated as of , [ ] to the GUARANTEE AGREEMENT
dated as of November 14, 2002, as amended and restated as of
December 15, 2004 (the "Guarantee Agreement"), among ABERCROMBIE &
FITCH CO., a Delaware corporation ("Parent"), and each direct and
indirect Subsidiary of Parent other than Abercrombie & Fitch
Management Co. (each a "Domestic Subsidiary" and, together with
Parent and any other Subsidiaries that become parties thereto as
contemplated by Section 15 thereof, referred to herein individually
as a "Guarantor" and collectively as the "Guarantors"), and NATIONAL
CITY BANK, as administrative agent (the "Agent") for the Lenders
(the "Lenders") party to the Credit Agreement dated as of November
14, 2002, as amended and restated as of December 15, 2004 (as
amended from time to time, the "Credit Agreement"), among
Abercrombie & Fitch Management Co. (the "Borrower"), Parent, the
Lenders party thereto and the Agent.
The Guarantors have entered into the Guarantee Agreement in order to
induce the Lenders to make Loans to the Borrower (such term and other
capitalized terms used herein and not otherwise defined herein having the
meanings assigned to such terms in the Guarantee Agreement and the Credit
Agreement). Section 15 of the Guarantee Agreement provides that additional
Domestic Subsidiaries may become Guarantors under the Guarantee Agreement by
execution and delivery of an instrument in the form of this Supplement. The
undersigned Domestic Subsidiary (the "New Guarantor") is executing this
Supplement to become a Guarantor under the Guarantee Agreement. As a Subsidiary,
the New Guarantor acknowledges that it derives substantial benefits from the
extension of credit to the Borrower under the Credit Agreement.
Accordingly, the Agent and the New Guarantor agree as follows:
SECTION 1. In accordance with Section 17 of the Guarantee Agreement,
the New Guarantor by its signature below becomes a Guarantor under the Guarantee
Agreement with the same force and effect as if originally named therein as a
Guarantor and the New Guarantor hereby agrees to all the terms and provisions of
the Guarantee Agreement applicable to it as a Guarantor thereunder. Each
reference to a "Guarantor" in the Guarantee Agreement shall be deemed to include
the New Guarantor. The Guarantee Agreement is hereby incorporated herein by
reference.
SECTION 2. The New Guarantor represents and warrants that this
Supplement has been duly authorized, executed and delivered by it and
constitutes its legal, valid and binding obligation, enforceable against it in
accordance with its terms, subject to applicable bankruptcy, insolvency and
similar laws affecting creditors' rights generally and equitable principles of
general applicability.
SECTION 3. This Supplement may be executed in counterparts, each of
which shall constitute an original, but all of which when taken together shall
constitute a single contract. This Supplement shall become effective when the
Agent shall have received a counterpart of this Supplement that bears the
signature of the New Guarantor.
SECTION 4. Except as expressly supplemented hereby, the Guarantee
Agreement shall remain in full force and effect.
SECTION 5. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF OHIO.
SECTION 6. In case any one or more of the provisions contained in this
Supplement should be held invalid, illegal or unenforceable in any respect, no
party hereto shall be required to comply with such provision for so long as such
provision is held to be invalid, illegal or unenforceable and the validity,
legality and enforceability of the remaining provisions contained herein and in
the Guarantee Agreement, and of any such provision with respect to any other
Guarantor, shall not in any way be affected or impaired. The parties shall
endeavor in good-faith negotiations to replace any 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 7. All communications and notices hereunder shall be in writing
and given as provided in Section 12 of the Guarantee Agreement. All
communications and notices hereunder to the New Guarantor shall be given to it
at the address set forth under its signature below.
SECTION 8. The New Guarantor agrees to reimburse the Agent for its
out-of-pocket expenses in connection with this Supplement, including the fees,
disbursements and other charges of counsel for the Agent.
IN WITNESS WHEREOF, the New Guarantor and the Agent have duly executed
this Supplement to the Guarantee Agreement as of the day and year first above
written.
[NAME OF NEW GUARANTOR],
by: ____________________________
Name:
Title:
[Address]
NATIONAL CITY BANK, as Agent,
by: ____________________________
Name:
Title:
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