EXECUTION COPY
AMENDED AND RESTATED GUARANTEE AGREEMENT dated as of April
30, 1997, as amended and restated as of September 21, 1998, among BRYLANE, INC.,
a Delaware corporation (the "Parent Corporation"), VGP CORPORATION, a Delaware
corporation ("VGP"), VLP CORPORATION, a Delaware corporation ("VLP"), VP HOLDING
CORPORATION ("VP Holding" and together with the Parent Corporation, VGP and VLP,
the "Parent Guarantors") the subsidiaries of BRYLANE L.P., a Delaware limited
partnership and indirect wholly owned subsidiary of the Parent Corporation
("Brylane"), listed on Schedule I hereto and such other subsidiaries as shall
become parties hereto pursuant to Section 15 hereof (the Parent Guarantors and
such listed and other subsidiaries of Brylane being referred to herein
individually as a "Guarantor" and collectively as the "Guarantors") and CREDIT
LYONNAIS NEW YORK BRANCH, as administrative agent (the "Agent") for the Lenders
party to the Amended and Restated Credit Agreement dated as of April 30, 1997,
as amended and restated as of September 21, 1998 (as amended from time to time,
the "Credit Agreement"), among Brylane, the Lenders and the Agent.
Reference is made to the Guarantee Agreement dated as of April 30,
1997, as amended and restated as of October 20, 1997 (the "Existing Guarantee
Agreement"), among the Parent Corporation, Brylane, the subsidiaries of the
Borrower party thereto and Xxxxxx Guaranty Trust Company of New York, as
security agent, and, upon the effectiveness hereof, this Agreement shall amend
and restate the Existing Guarantee Agreement and shall maintain the guarantees
created under the Existing Guarantee Agreement.
Capitalized terms used herein but not otherwise defined herein shall
have the meanings assigned to such terms in the Credit Agreement.
The Lenders have respectively agreed to make loans to Brylane, and the
Issuing Banks have agreed to issue the Letters of Credit for the account of
Brylane. The obligations of the Lenders to lend, and of the Issuing Banks to
issue Letters of Credit, 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. As the parent or Subsidiaries of Brylane, as the
case may be, the Guarantors acknowledge that they will derive substantial
benefits from the extension of credit to Brylane under the Credit Agreement. As
consideration therefor and in order to induce the Lenders to make Loans and to
induce the Issuing Banks to issue Letters of Credit, the Guarantors are willing
to execute and deliver this Agreement.
PAGE
Accordingly, the parties hereto agree as follows:
SECTION 1. Each of the Guarantors unconditionally and irrevocably
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 Brylane
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 repayment or
otherwise; (ii) each payment required to be made by Brylane under Section 2.13
of the Credit Agreement in respect of any Letter of Credit Disbursement, when
and as due, including interest thereon, if any; (iii) all other monetary
obligations of Brylane to the Lenders (including, without limitation, the
Swingline Lender and the Issuing Banks), the Agent and the Security Agent under
the Credit Agreement and the other Loan Documents to which Brylane is or is to
be a party; and (iv) each payment required to be made by Brylane under any Rate
Protection Agreement that was entered into by Brylane with a counterparty that
was a Lender (including, without limitation, the Swingline Lender and the
Issuing Banks) at the time such Rate Protection Agreement was entered into; (b)
the due and punctual performance of all other obligations of Brylane under the
Credit Agreement, the other Loan Documents and any Rate Protection Agreement
referred to in clause (iv) above; and (c) the due and punctual payment and
performance of all obligations of each Parent Guarantor and Subsidiary under the
Loan Documents to which it is or is to be a party (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 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 Brylane or any Parent Guarantor or Subsidiary of any
of the Obligations, and also waives notice of acceptance of its guarantee and
notice to protest for nonpayment. The obligations of each Guarantor hereunder
shall not be affected by (a) the failure of the Agent, the Security Agent or any
Lender (including, without limitation, the Swingline Lender and the Issuing
Banks) to assert any claim or demand or to enforce any right or remedy against
Brylane or any Parent Guarantor or Subsidiary 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, the
Security Agent or any Lender (including, without limitation, the Swingline
Lender and the Issuing Banks) for the Obligations of any of them; or (d) the
failure of the Agent, the Security Agent or any Lender (including, without
limitation, the Swingline Lender and the Issuing Banks) to exercise any right or
remedy against any other Guarantor or guarantor of the Obligations.
PAGE
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 the resort be had by the Agent, the Security
Agent or any Lender (including, without limitation, the Swingline Lender and the
Issuing Banks) 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, the Security
Agent or any Lender (including, without limitation, the Swingline Lender and the
Issuing Banks) in favor of Brylane 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, the Security Agent or any Lender (including, without
limitation, the Swingline Lender and the Issuing Banks) 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, wilful 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 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, the Security Agent or any Lender (including,
without limitation, the Swingline Lender and the Issuing Banks) upon the
bankruptcy or reorganization of Brylane, any Guarantor or otherwise.
PAGE
SECTION 6. In furtherance of the foregoing and not in limitation of
any other right which the Agent, the Security Agent or any Lender (including,
without limitation, the Swingline Lender and the Issuing Banks) has at law or in
equity against any Guarantor by virtue hereof, upon the failure of Brylane or
any Parent Guarantor or Subsidiary to pay any Obligation when and as the same
shall become due, whether at maturity, by acceleration, after notice of
repayment 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 (including, without limitation, the
Swingline Lender and the Issuing Banks) and the Security Agent, if and as
appropriate, in cash the amount of such unpaid Obligation. Each Guarantor
hereby waives any claim, right or remedy which such Guarantor may now have or
hereafter acquire against Brylane or any Parent Guarantor or any Subsidiary that
arises hereunder, including, without limitation, any claim, remedy or right of
subrogation, reimbursement, exoneration, contribution, indemnification, or
participation in any claim, right or remedy of such Guarantor against Brylane or
any Parent Guarantor or Subsidiary whether or not such claim, right or remedy
arises in equity, under contract, by statute, under common law or otherwise. 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 (including, without
limitation, the Swingline Lender and the Issuing Banks) 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 that is a Subsidiary shall not exceed the maximum amount that can be
hereby guaranteed by such 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 jointly and severally represents
and warrants that all representations and warranties contained in the Credit
Agreement which relate to the Guarantors are true and correct. The Parent
Corporation agrees to observe the covenants applicable to it set forth in the
Credit Agreement.
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 so long as the Lenders (including, without limitation, the
Swingline Lender) have any further commitment to lend or any Issuing Bank has
any further obligation to issue Letters of Credit under the Credit Agreement or
any Letter of Credit is outstanding, and shall be reinstated to the extent
provided in Section 5. Each Guarantor (other than the Parent Guarantor) shall
be released from its guarantee hereunder in the event that all the capital stock
of such Guarantor shall be sold, transferred or otherwise disposed of, in
accordance with the terms of the Credit Agreement, by Brylane or a Subsidiary
that shall own such stock, to a person that is not an Affiliate of Brylane, if
the Required Lenders shall have consented to such sale, transfer or other
disposition (and if the terms of any such consent shall not provide otherwise).
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, the Security Agent and the Lenders (including,
without limitation, the Swingline Lender and the Issuing Banks) 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 or the Credit Agreement.
PAGE
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, the Security Agent or any Lender (including,
without limitation, the Swingline Lender and the Issuing Banks) 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, the Security Agent or
the Lenders (including, without limitation, the Swingline Lender and the Issuing
Banks) 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 NEW YORK.
SECTION 12. All communications and notices hereunder shall be in
writing and given as provided in Section 9.01 of the Credit Agreement. All
communications and notices hereunder to any Guarantor shall be given to it in
care of Brylane at the address specified in the Credit Agreement for notices to
Brylane thereunder.
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 comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
SECTION 14. 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.
PAGE
SECTION 15. Upon execution and delivery by the Agent and a Subsidiary
of an instrument in the form of Annex 1 attached hereto, such Subsidiary shall
become a Guarantor hereunder with the same force and effect as if originally
named as Guarantor herein. The execution and delivery of any such instrument
shall not require the consent of any other 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.
BRYLANE INC., as a Guarantor,
by
_________________________
Name:
Title:
VGP CORPORATION, as a Guarantor,
by
_________________________
Name:
Title:
VLP CORPORATION, as a Guarantor,
by
_________________________
Name:
Title:
VP HOLDING CORPORATION, as a Guarantor,
by
_________________________
Name:
Title:
BRYLANE CAPITAL CORP., as a Guarantor,
by
_________________________
Name:
Title:
X.X. CATALOG DISTRIBUTION, INC.,
as a Guarantor,
by
_________________________
PAGE
Name:
Title:
X.X. CATALOG DISTRIBUTION PARTNERSHIP,
as a Guarantor,
by X.X. CATALOG DISTRIBUTION INC.,
General Partner,
by
_________________________
Name:
Title:
by BRYLANE, L.P., General Partner,
by VGP Corporation, General Partner,
by
_________________________
Name:
Title:
X.X. MANAGEMENT SERVICES, INC.,
as a Guarantor,
by
_________________________
Name:
Title:
X.X. MANAGEMENT SERVICES PARTNERSHIP,
as a Guarantor,
by X.X. MANAGEMENT SERVICES, INC.,
General Partner,
by
_________________________
Name:
Title:
by B.N.Y. SERVICE CORP.,
General Partner,
by
_________________________
Name:
Title:
PAGE
B.N.Y. SERVICE CORP., as a Guarantor,
by
_________________________
Name:
Title:
K.S. MANAGEMENT SERVICES, INC.,
by
_________________________
Name:
Title:
C.O.B. MANAGEMENT SERVICES, INC.,
as a Guarantor,
by
_________________________
Name:
Title:
XXXXXXXX'X TRADENAME SUB, INC.,
as a Guarantor,
by
_________________________
Name:
Title:
CREDIT LYONNAIS NEW YORK BRANCH,
as administrative agent,
by
_________________________
Name:
Title:
by
_________________________
Name:
Title:
PAGE
Schedule I to the Amended and
Restated Guarantee Agreement
Guarantors
1. Brylane Inc., a Delaware corporation.
2. Brylane Capital Corp., a Delaware corporation.
3. X.X. Management Services, Inc., a Delaware corporation.
4. B.N.Y. Service Corp., a Delaware corporation.
5. X.X. Catalog Distribution, Inc., a Delaware corporation.
6. X.X. Management Services Partnership, a New York general partnership.
7. X.X. Catalog Distribution Partnership, an Indiana general partnership.
8. K.S. Management Services, Inc., a Delaware corporation.
9. C.O.B. Management Services, Inc., a Delaware corporation.
10. Xxxxxxxx'x Tradename Sub, Inc., a Delaware corporation.
PAGE
Annex 1 to the Amended and
Restated Guarantee Agreement
SUPPLEMENT NO. 1 dated as of , to the Guarantee
Agreement dated as of April 30, 1997, as amended and restated as of September [
], 1998 (as amended and supplemented through the date hereof, the "Guarantee
Agreement"), among BRYLANE INC., a Delaware corporation (the "Parent
Corporation"), the subsidiaries of BRYLANE, L.P., a Delaware limited partnership
and indirect wholly owned subsidiary of the Parent Corporation ("Brylane"),
party thereto (the Parent Corporation and such subsidiaries of Brylane being
referred to herein individually as a "Guarantor" and collectively as the
"Guarantors"), and CREDIT LYONNAIS NEW YORK BRANCH, as administrative agent (the
"Agent") for the Lenders party to the Amended and Restated Credit Agreement
dated as of April 30, 1997, as amended and restated as of September [ ], 1998
(as amended from time to time, the "Credit Agreement"), among Brylane, the
Lenders and the Agent.
A. Capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned to such terms in the Guarantee Agreement.
B. The Guarantors have entered into the Guarantee Agreement in order
to induce the Lenders to extend credit under the Credit Agreement. The
Guarantee Agreement provides that additional Subsidiaries may become Guarantors
under the Guarantee Agreement by execution and delivery of an instrument in the
form of this Supplement. Pursuant to the Credit Agree-ment, the undersigned
Subsidiary (the "New Guarantor") is required to become a Guarantor under the
Guarantee Agreement. The New Guarantor desires to become a Guarantor under the
Guarantee Agreement in order to induce the Lenders to continue to extend credit
under the Credit Agreement and as consideration therefor.
Accordingly, the Agent and the New Guarantor agree as follows:
SECTION 1. In accordance with the Guarantee Agreement, the New
Guarantor by its signature hereto shall become 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 (a) agrees to all the terms and
provisions of the Guarantee Agreement applicable to it as a Guarantor thereunder
and (b) represents and warrants that the representations and warranties made by
it as a Guarantor thereunder are true and correct on and as of the date hereof.
In furtherance of the fore-going, the New Guarantor unconditionally guarantees,
jointly with the other Guarantors and severally, as a primary obligor and not
merely as surety, all of the Obligations. Each reference to a "Guarantor" in
the Guarantee Agreement shall be deemed to include the New Guarantor. The
Guarantee Agreement is hereby incorpo-rated herein by reference.
PAGE
SECTION 2. This Supplement shall become effective when the Agent
shall have received a counterpart of this Supplement executed on behalf of the
New Guarantor.
SECTION 3. The New Guarantor hereby represents and warrants that this
Supplement has been duly author-ized, executed and delivered by the New
Guarantor and constitutes a valid and binding obligation of the New Guarantor,
enforceable against it in accordance with its terms.
SECTION 4. Except as expressly supplemented hereby, the Guarantee
Agreement shall remain in full force and effect in accordance with its terms.
SECTION 5. THIS SUPPLEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
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,
the validity, legality and enforceability of the remaining provisions contained
herein and in the Guarantee Agreement shall not in any way be affected or
impaired. The parties hereto shall endeavor in good-faith negotiations to
replace any invalid, illegal or unenforceable provisions herein with valid
provisions, the economic effect of which comes as close as possible to that of
the invalid, illegal or unenforceable provisions.
SECTION 7. This Supplement 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.
PAGE
SECTION 8. The New Guarantor agrees to reimburse the Agent for its
reasonable out-of-pocket expenses in connection with this Supplement, includ-ing
the reasonable fees and expenses 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.
[New Guarantor],
by
_______________________
Name:
Title:
CREDIT LYONNAIS NEW YORK BRANCH,
as administrative agent,
by
________________________
Name:
Title:
by
________________________
Name:
Title:
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