Contract
Exhibit 10.2
Execution Version
Guaranty, dated as of June 17, 2011 (this “Guaranty”), by The Warnaco Group, Inc., a
Delaware corporation (“Group”), and each of the other entities listed on the signature pages hereof
or that becomes a party hereto pursuant to Section 25 hereof (each a “Subsidiary Guarantor” and,
together with Group, collectively, the “Guarantors” and individually a “Guarantor”), in favor of
the Administrative Agent, the Collateral Agent, each Lender, and each other holder of an Obligation
(as each such term is defined in the Credit Agreement referred to below) (each, a “Guarantied
Party” and, collectively, the “Guarantied Parties”).
W I T N E S S E T H:
WHEREAS, Warnaco Inc., a Delaware corporation (the “Borrower”), Xxxxxx Xxxxx Jeanswear Company
(“CK Borrower”), Warnaco Swimwear Products Inc. (“Swimwear Borrower” and together with the Borrower
and the CK Borrower, collectively the “Borrowers”), The Warnaco Group, Inc., the Lenders party
thereto, JPMorgan Chase Bank, N.A., as administrative agent (in such capacity, the “Administrative
Agent”) and as Collateral Agent for the Lenders (together with the Administrative Agent, the
“Facility Agents”), and the other Persons party thereto have entered into the Credit Agreement,
dated as of June 17, 2011 (as amended, amended and restated, supplemented or otherwise modified
from time to time, the “Credit Agreement”; capitalized terms used herein but not defined herein are
used with the meanings given to them in the Credit Agreement);
WHEREAS, it is condition precedent to the effectiveness of the Credit Agreement that the
Guarantors shall have executed and delivered this Guaranty to the Collateral Agent for the benefit
of the Guarantied Parties;
WHEREAS, Group is the sole shareholder of the Borrower and each Subsidiary Guarantor is a
direct or indirect Subsidiary of the Borrower; and WHEREAS, each Guarantor will receive substantial
direct and indirect benefits from the making of the Loans to the Borrowers under the Credit
Agreement;
NOW, THEREFORE, in consideration of the premises set forth above, the terms and conditions
contained herein, and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto hereby agree as follows:
Section 1 Guaranty
(a) To induce the Lenders to make the Loans, each Guarantor hereby absolutely, unconditionally
and irrevocably guarantees, jointly with the other Guarantors and severally, as primary obligor and
not merely as surety, the full and punctual payment when due and in the currency due, whether at
stated maturity or earlier, by reason of acceleration, mandatory prepayment or otherwise in
accordance herewith or any other Loan Document, of all the Obligations, whether or not from time to
time reduced or extinguished or hereafter increased or incurred, whether or not recovery may be or
hereafter may become barred by any statute of limitations, whether or not enforceable as against
the Borrowers, whether now or hereafter existing, and whether due or to become due, including
principal, interest (including interest at the contract rate applicable upon default accrued or
accruing after the commencement of any proceeding under the Bankruptcy Code, or any applicable
provisions of comparable state or foreign law, whether or not such interest is an allowed claim in
such proceeding), fees and costs of collection. This Guaranty constitutes a guaranty of payment and
not of collection.
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(b) Each Guarantor further agrees that, if (i) any payment made by Borrowers or any other
Person and applied to the Obligations is at any time annulled, avoided, set aside, rescinded,
invalidated, declared to be fraudulent or preferential or otherwise required to be refunded or
repaid, or (ii) any proceeds of Collateral are required to be returned by any Guarantied Party to
the Borrowers, their respective estate, trustee, receiver or any other party, including any
Guarantor, under any bankruptcy law, equitable cause or any other Requirement of Law, then, to the
extent of such payment or repayment, any such Guarantor’s liability hereunder (and any Lien or
other Collateral securing such liability) shall be and remain in full force and effect, as fully as
if such payment had never been made. If, prior to any of the foregoing, this Guaranty shall have
been cancelled or surrendered (and if any Lien or other Collateral securing such Guarantor’s
liability hereunder shall have been released or terminated by virtue of such cancellation or
surrender), this Guaranty (and such Lien or other Collateral) shall be reinstated in full force and
effect, and such prior cancellation or surrender shall not diminish, release, discharge, impair or
otherwise affect the obligations of any such Guarantor in respect of the amount of such payment (or
any Lien or other Collateral securing such obligation).
Section 2 Limitation of Guaranty
Any term or provision of this Guaranty or any other Loan Document to the contrary
notwithstanding, the maximum aggregate amount of the Obligations for which any Subsidiary Guarantor
shall be liable shall not exceed the maximum amount for which such Subsidiary Guarantor can be
liable without rendering this Guaranty or any other Loan Document, as it relates to such Subsidiary
Guarantor, subject to avoidance under applicable law relating to fraudulent conveyance or
fraudulent transfer (including Section 548 of the Bankruptcy Code or any applicable provisions of
comparable state law) (collectively, “Fraudulent Transfer Laws”), in each case after giving effect
(a) to all other liabilities of such Subsidiary Guarantor, contingent or otherwise, that are
relevant under such Fraudulent Transfer Laws (specifically excluding, however, any liabilities of
such Subsidiary Guarantor in respect of intercompany Indebtedness to the Borrowers to the extent
that such Indebtedness would be discharged in an amount equal to the amount paid by such Subsidiary
Guarantor hereunder) and (b) to the value as assets of such Subsidiary Guarantor (as determined
under the applicable provisions of such Fraudulent Transfer Laws) of any rights to subrogation,
contribution, reimbursement, indemnity or similar rights held by such Subsidiary Guarantor pursuant
to (i) applicable Requirements of Law, (ii) Section 3 of this Guaranty or (iii) any other
Contractual Obligations providing for an equitable allocation among such Subsidiary Guarantor and
other Subsidiaries or Affiliates of the Borrowers of obligations arising under this Guaranty or
other guaranties of the Obligations by such parties.
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Section 3 Contribution
To the extent that any Subsidiary Guarantor shall be required hereunder to pay a portion of
the Obligations exceeding the greater of (a) the amount of the economic benefit actually received
by such Subsidiary Guarantor from the Loans provided to the Borrowers under the Loan Documents and
(b) the amount such Subsidiary Guarantor would otherwise have paid if such Subsidiary Guarantor had
paid the aggregate amount of the Obligations (excluding the amount thereof repaid by the Borrowers
and Group) in the same proportion as such Subsidiary Guarantor’s net worth at the date enforcement
is sought hereunder bears to the aggregate net worth of all the Subsidiary Guarantors at the date
enforcement is sought hereunder, then such Guarantor shall be reimbursed by such other Subsidiary
Guarantors for the amount of such excess, pro rata, based on the respective net worths of such
other Subsidiary Guarantors at the date enforcement hereunder is sought.
Section 4 Authorization; Other Agreements
The Guarantied Parties are hereby authorized, without notice to, or demand upon, any
Guarantor, which notice and demand requirements each are expressly waived hereby, and without
discharging or otherwise affecting the obligations of such Guarantor hereunder (which obligations
shall remain absolute and unconditional notwithstanding any such action or omission to act), from
time to time, to do each of the following:
(a) supplement, renew, extend, accelerate or otherwise change the time for payment of, or
other terms relating to, the Obligations, or any part of them, or otherwise modify, amend or change
the terms of any promissory note or other agreement, document or instrument (including any of the
other Loan Documents) now or hereafter executed by the Borrowers and delivered to the Guarantied
Parties or any of them, including any increase or decrease of principal or the rate of interest
thereon;
(b) waive or otherwise consent to noncompliance with any provision of any instrument
evidencing the Obligations, or any part thereof, or any other instrument or agreement in respect of
any of the Obligations (including any of the other Loan Documents) now or hereafter executed by the
Borrowers and delivered to the Guarantied Parties or any of them;
(c) accept partial payments on any of the Obligations;
(d) receive, take and hold additional security or collateral for the payment of the
Obligations or any part of them and exchange, enforce, waive, substitute, liquidate, terminate,
abandon, fail to perfect, subordinate, transfer, otherwise alter and release any such additional
security or collateral;
(e) settle, release, compromise, collect or otherwise liquidate any of the Obligations or
accept, substitute, release, exchange or otherwise alter, affect or impair any security or
collateral for the Obligations or any part of them or any other guaranty therefor, in any manner;
(f) add, release or substitute any one or more other guarantors, makers or endorsers of the
Obligations or any part of them and otherwise deal with the Borrowers or any other guarantor, maker
or endorser;
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(g) apply to the Obligations any payment or recovery (x) from the Borrowers, from any other
guarantor, maker or endorser of the Obligations or any part of them or (y) from any Guarantor in
such order as provided herein, in each case whether such Obligations are secured or unsecured or
guaranteed or not guaranteed by others;
(h) apply to the Obligations any payment or recovery from any Guarantor of any of the
Obligations or any sum realized from security furnished by such Guarantor upon its indebtedness or
obligations to the Guarantied Parties or any of them, in each case whether or not such indebtedness
or obligations relate to the Obligations; and
(i) refund at any time any payment received by any Guarantied Party in respect of any
Obligation, and payment to such Guarantied Party of the amount so refunded shall be fully
guaranteed hereby even though prior thereto this Guaranty shall have been cancelled or surrendered
(or any release or termination of any Collateral by virtue thereof), and such prior cancellation or
surrender shall not diminish, release, discharge, impair or otherwise affect the obligations of any
Guarantor hereunder in respect of the amount so refunded (and any Collateral so released or
terminated shall be reinstated with respect to such obligations); even if any right of
reimbursement or subrogation or other right or remedy of any Guarantor is extinguished, affected or
impaired by any of the foregoing (including any election of remedies by reason of any judicial,
non-judicial or other proceeding in respect of any of the Obligations that impairs any subrogation,
reimbursement or other right of such Guarantor).
Section 5 Guaranty Absolute and Unconditional
To the fullest extent permitted by applicable law, each Guarantor hereby waives any defense of
a surety or guarantor or any other obligor on any obligations arising in connection with or in
respect of any of the following and hereby agrees that its obligations under this Guaranty are
absolute and unconditional and shall not be discharged or otherwise affected as a result of any of
the following:
(a) the invalidity or unenforceability of any of the Borrowers’ obligations under the Credit
Agreement or any other Loan Document or any other agreement or instrument relating thereto, or any
security for, or other guaranty of the Obligations or any part of them, or the lack of perfection
or continuing perfection or failure of priority of any security for the Obligations or any part of
them;
(b) the absence of any attempt to collect the Obligations or any part of them from the
Borrowers or other action to enforce the same;
(c) failure by any Guarantied Party to take any steps to perfect and maintain any Lien on, or
to preserve any rights to, any Collateral;
(d) any Guarantied Party’s election, in any proceeding instituted under chapter 11 of the
Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code or any applicable
provisions of comparable state or foreign law;
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(e) any borrowing or grant of a Lien by any of the Borrowers, as debtor-in-possession, or
extension of credit, under Section 364 of the Bankruptcy Code or any applicable provisions of
comparable state or foreign law;
(f) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any
Guarantied Party’s claim (or claims) for repayment of the Obligations;
(g) any use of cash collateral under Section 363 of the Bankruptcy Code;
(h) any agreement or stipulation as to the provision of adequate protection in any bankruptcy
proceeding;
(i) the avoidance of any Lien in favor of the Guarantied Parties or any of them for any
reason;
(j) any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, liquidation
or dissolution proceeding commenced by or against any of the Borrowers, any Guarantor or any of the
Borrowers’ other Subsidiaries, including any discharge of, or bar or stay against collecting, any
Obligation (or any part of them or interest thereon) in or as a result of any such proceeding;
(k) failure by any Guarantied Party to file or enforce a claim against the Borrowers or their
respective estate in any bankruptcy or insolvency case or proceeding;
(l) any action taken by any Guarantied Party if such action is authorized hereby;
(m) any election following the occurrence of an Event of Default by any Guarantied Party to
proceed separately against the personal property Collateral in accordance with such Guarantied
Party’s rights under the UCC or, if the Collateral consists of both personal and real property, to
proceed against such personal and real property in accordance with such Guarantied Party’s rights
with respect to such real property; or
(n) any other circumstance that might otherwise constitute a legal or equitable discharge or
defense of a surety or guarantor or any other obligor on any obligations, other than the
indefeasible payment in full of the Obligations.
Section 6 Waivers
To the fullest extent permitted by applicable law, each Guarantor hereby waives diligence,
promptness, presentment, demand for payment or performance and protest and notice of protest,
notice of acceptance and any other notice in respect of the Obligations or any part of them, and
any defense arising by reason of any disability or other defense of the Borrowers. Each Guarantor
shall not, until the Obligations are irrevocably paid in full and the Commitments have been
terminated, assert any claim or counterclaim it may have against the Borrowers or set off any of
its obligations to the Borrowers against any obligations of the Borrowers to it. In connection with
the foregoing, each Guarantor covenants that its obligations hereunder shall not be discharged,
except by complete performance.
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Section 7 Reliance
Each Guarantor hereby assumes responsibility for keeping itself informed of the financial
condition of the Borrowers and any endorser and other guarantor of all or any part of the
Obligations, and of all other circumstances bearing upon the risk of nonpayment of the Obligations,
or any part thereof, that diligent inquiry would reveal, and each Guarantor hereby agrees that no
Guarantied Party shall have any duty to advise any Guarantor of information known to it regarding
such condition or any such circumstances. In the event any Guarantied Party, in its sole
discretion, undertakes at any time or from time to time to provide any such information to any
Guarantor, such Guarantied Party shall be under no obligation (a) to undertake any investigation
not a part of its regular business routine, (b) to disclose any information that such Guarantied
Party, pursuant to accepted or reasonable commercial finance or banking practices, wishes to
maintain confidential or (c) to make any other or future disclosures of such information or any
other information to any Guarantor.
Section 8 Waiver of Subrogation and Contribution Rights
Until the Obligations have been irrevocably paid in full and the Commitments have been
terminated, the Guarantors shall not enforce or otherwise exercise any right of subrogation to any
of the rights of the Guarantied Parties or any part of them against the Borrowers or any right of
reimbursement or contribution or similar right against the Borrowers by reason of this Guaranty or
by any payment made by any Guarantor in respect of the Obligations.
Section 9 Subordination
Each Guarantor hereby agrees that any Indebtedness of the Borrowers now or hereafter owing to
any Guarantor, whether heretofore, now or hereafter created (the “Guarantor Subordinated Debt”), is
hereby subordinated to all of the Obligations and that, except as permitted under Section 7.6 of
the Credit Agreement, the Guarantor Subordinated Debt shall not be paid in whole or in part until
the Obligations have been paid in full and this Guaranty is terminated and of no further force or
effect. No Guarantor shall accept any payment of or on account of any Guarantor Subordinated Debt
at any time in contravention of the foregoing. Upon the occurrence and during the continuance of an
Event of Default, the Borrowers shall pay to the Collateral Agent any payment of all or any part of
the Guarantor Subordinated Debt and any amount so paid to the Collateral Agent shall be applied to
payment of the Obligations as provided in the Credit Agreement. Each payment on the Guarantor
Subordinated Debt received in violation of any of the provisions hereof shall be deemed to have
been received by such Guarantor as trustee for the Guarantied Parties and shall be paid over to the
Collateral Agent immediately on account of the Obligations, but without otherwise affecting in any
manner such Guarantor’s liability hereof. Each Guarantor agrees to file all claims against the
Borrowers in any bankruptcy or other proceeding in which the filing of claims is required by law in
respect of any Guarantor Subordinated Debt, and the Collateral Agent shall be entitled to all of
such Guarantor’s rights thereunder. If for any reason a Guarantor fails to file such claim at least
ten Business Days prior to the
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last date on which such claim should be filed, such Guarantor hereby irrevocably appoints the
Collateral Agent as its true and lawful attorney-in-fact and is hereby authorized to act as
attorney-in-fact in such Guarantor’s name to file such claim or, in the Collateral Agent’s
discretion, to assign such claim to and cause proof of claim to be filed in the name of the
Collateral Agent or its nominee. In all such cases, whether in administration, bankruptcy or
otherwise, the person or persons authorized to pay such claim shall pay to the Collateral Agent the
full amount payable on the claim in the proceeding, and, to the full extent necessary for that
purpose, each Guarantor hereby assigns to the Collateral Agent all of such Guarantor’s rights to
any such payments or distributions to which such Guarantor otherwise would be entitled. If the
amount so paid is greater than such Guarantor’s liability hereunder, the Collateral Agent shall pay
the excess amount to the party entitled thereto. In addition, each Guarantor hereby irrevocably
appoints the Collateral Agent as its attorney-in-fact to exercise all of such Guarantor’s voting
rights in connection with any bankruptcy proceeding or any plan for the reorganization of any of
the Borrowers.
Section 10 Default; Remedies
The obligations of each Guarantor hereunder are independent of and separate from the
Obligations. If any Obligation is not paid when due, or upon any Event of Default or upon any
default by the Borrowers as provided in any other instrument or document evidencing all or any part
of the Obligations, the Collateral Agent may, at its sole election, proceed directly and at once,
without notice, against any Guarantor to collect and recover the full amount or any portion of the
Obligations then due, without first proceeding against the Borrowers or any other guarantor of any
of the Obligations, or against any Collateral under the Loan Documents or joining the Borrowers or
any other guarantor in any proceeding against any Guarantor. At any time after maturity of any of
the Obligations, the Collateral Agent may (unless the Obligations have been irrevocably paid in
full), without notice to any Guarantor and regardless of the acceptance of any Collateral for the
payment hereof, appropriate and apply toward the payment of the Obligations (a) any indebtedness
due or to become due from any Guarantied Party to such Guarantor and (b) any moneys, credits or
other property belonging to such Guarantor at any time held by or coming into the possession of any
Guarantied Party or any of its respective Affiliates.
Section 11 Irrevocability
This Guaranty shall be irrevocable as to the Obligations (or any part thereof) until the
Commitments have been terminated and all monetary Obligations then outstanding have been
irrevocably repaid in cash, at which time this Guaranty shall automatically be cancelled. Upon
such cancellation and at the written request of any Guarantor or its successors or assigns, and at
the cost and expense of such Guarantor or its successors or assigns, the Collateral Agent shall
execute in a timely manner and deliver to the Guarantors a satisfaction of this Guaranty and such
instruments, documents or agreements as are necessary or desirable to evidence the termination of
this Guaranty.
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Section 12 Setoff
Upon the occurrence and during the continuance of an Event of Default, each Guarantied Party
and each Affiliate of a Guarantied Party may, without notice to any Guarantor and regardless of the
acceptance of any security or collateral for the payment hereof, appropriate and apply toward the
payment of all or any part of the Obligations (a) any indebtedness due or to become due from such
Guarantied Party or Affiliate to such Guarantor and (b) any moneys, credits or other property
belonging to such Guarantor, at any time held by, or coming into, the possession of such Guarantied
Party or Affiliate.
Section 13 No Marshalling
Each Guarantor consents and agrees that no Guarantied Party or Person acting for or on behalf
of any Guarantied Party shall be under any obligation to marshal any assets in favor of any
Guarantor or against or in payment of any or all of the Obligations.
Section 14 Enforcement; Amendments; Waivers
No delay on the part of any Guarantied Party in the exercise of any right or remedy arising
under this Guaranty, the Credit Agreement, any other Loan Document or otherwise with respect to all
or any part of the Obligations, the Collateral or any other guaranty of or security for all or any
part of the Obligations shall operate as a waiver thereof, and no single or partial exercise by any
such Person of any such right or remedy shall preclude any further exercise thereof. No
modification or waiver of any provision of this Guaranty shall be binding upon any Guarantied
Party, except as expressly set forth in a writing duly signed and delivered by the Facility Agents
(in accordance with Section 10.1 of the Credit Agreement). Failure by any Guarantied Party at any
time or times hereafter to require strict performance by the Borrowers, any Guarantor, any other
guarantor of all or any part of the Obligations or any other Person of any provision, warranty,
term or condition contained in any Loan Document now or at any time hereafter executed by any such
Persons and delivered to any Guarantied Party shall not waive, affect or diminish any right of any
Guarantied Party at any time or times hereafter to demand strict performance thereof and such right
shall not be deemed to have been waived by any act or knowledge of any Guarantied Party, or its
respective agents, officers or employees, unless such waiver is contained in an instrument in
writing, directed and delivered to the Borrowers or such Guarantor, as applicable, specifying such
waiver, and is signed by the party or parties necessary to give such waiver under the Credit
Agreement. No waiver of any Event of Default by any Guarantied Party shall operate as a waiver of
any other Event of Default or the same Event of Default on a future occasion, and no action by any
Guarantied Party permitted hereunder shall in any way affect or impair any Guarantied Party’s
rights and remedies or the obligations of any Guarantor under this Guaranty. Any determination by a
court of competent jurisdiction of the amount of any principal or interest owing by the Borrowers
to a Guarantied Party shall be conclusive and binding on each Guarantor irrespective of whether
such Guarantor was a party to the suit or action in which such determination was made.
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Section 15 [Intentionally Omitted]
Section 16 Successors and Assigns
This Guaranty shall be binding upon each Guarantor and upon the successors and assigns of such
Guarantors and shall inure to the benefit of the Guarantied Parties and their respective successors
and assigns; all references herein to the Borrowers and to the Guarantors shall be deemed to
include their respective successors and assigns. The successors and assigns of the Guarantors and
the Borrowers shall include, without limitation, their respective receivers, trustees and
debtors-in-possession. All references to the singular shall be deemed to include the plural where
the context so requires.
Section 17 Representations and Warranties; Covenants
Each Guarantor hereby (a) represents and warrants that the representations and warranties as
to it made by the Borrowers in Article IV of the Credit Agreement are true and correct on each date
as required by Section 3.2(b)(i) of the Credit Agreement and (b) agrees to take, or refrain from
taking, as the case may be, each action necessary to be taken or not taken, as the case may be, so
that no Default or Event of Default is caused by the failure to take such action or to refrain from
taking such action by such Guarantor.
Section 18 Governing Law
This Guaranty and the rights and obligations of the parties hereto shall be governed by, and
construed and interpreted in accordance with, the internal law of the State of New York.
Section 19 Submission to Jurisdiction; Service of Process
(a) Any legal action or proceeding with respect to this Guaranty, and any other Loan Document,
may be brought in the courts of the State of New York or of the United States of America for the
Southern District of New York, and, by execution and delivery of this Guaranty, each party hereto
hereby accepts for itself and in respect of its property, generally and unconditionally, the
jurisdiction of the aforesaid courts. The parties hereto hereby irrevocably waive any objection,
including any objection to the laying of venue or based on the grounds of forum non conveniens,
that any of them may now or hereafter have to the bringing of any such action or proceeding in such
respective jurisdictions.
(b) Each party hereto hereby irrevocably consents to the service of any and all legal process,
summons, notices and documents in any suit, action or proceeding brought in the United States of
America arising out of or in connection with this Guaranty or any other Loan Document by the
mailing (by registered or certified mail, postage prepaid) or delivering of a copy of such process
to such Guarantor in the care of the Borrowers at the Borrowers’ address or such other party at its
address, in each case as such address is specified in Section 10.8 of the Credit Agreement. Each
party 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.
(c) If for the purposes of obtaining judgment in any court it is necessary to convert a sum
due hereunder in Dollars into another currency, the parties hereto agree, to the fullest extent
they may effectively do so, that the rate of exchange used shall be that at which in accordance
with normal banking procedures the Collateral Agent could purchase Dollars with such other currency
at the spot rate of exchange quoted by the Collateral Agent at 11:00 a.m. (New York time) on the
Business Day preceding that on which final judgment is given, for the purchase of Dollars, for
delivery two Business Days thereafter.
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Section 20 Waiver of Judicial Bond
To the fullest extent permitted by applicable law, each Guarantor waives the requirement to
post any bond that otherwise may be required of any Guarantied Party in connection with any
judicial proceeding to enforce such Guarantied Party’s rights to payment hereunder, security
interest in or other rights to any of the Collateral or in connection with any other legal or
equitable action or proceeding arising out of, in connection with, or related to this Guaranty or
any Loan Documents to which it is a party.
Section 21 Certain Terms
The following rules of interpretation shall apply to this Guaranty: (a) the terms “herein,”
”hereof,” “hereto” and “hereunder” and similar terms refer to this Guaranty as a whole and not to
any particular Article, Section, subsection or clause in this Guaranty, (b) unless otherwise
indicated, references herein to an Exhibit, Article, Section, subsection or clause refer to the
appropriate Exhibit to, or Article, Section, subsection or clause in this Guaranty and ( c) the
term “including” means “including without limitation” except when used in the computation of time
periods.
Section 22 Waiver of Jury Trial
EACH OF THE COLLATERAL AGENT, THE OTHER GUARANTIED PARTIES AND EACH GUARANTOR IRREVOCABLY
WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY OR ANY OTHER LOAN
DOCUMENT.
Section 23 Notices
Any notice or other communication herein required or permitted shall be given as provided in
Section 10.8 of the Credit Agreement and, in the case of any Guarantor, to such Guarantor in care
of the Borrowers.
Section 24 Severability
Wherever possible, each provision of this Guaranty shall be interpreted in such manner as to
be effective and valid under applicable law, but if any provision of this Guaranty shall be
prohibited by or invalid under such law, such provision shall be ineffective to the extent of such
prohibition or invalidity without invalidating the remainder of such provision or the remaining
provisions of this Guaranty.
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Section 25 Additional Guarantors
Each of the Guarantors agrees that, if, pursuant to Section 6.11(a) of the Credit Agreement,
Group or the Borrowers shall be required to cause any Subsidiary thereof that is not a Guarantor to
become a Guarantor hereunder, or if for any reason Group or the Borrowers desires any such
Subsidiary to become a Guarantor hereunder, such Subsidiary shall execute and deliver to the
Collateral Agent a Guaranty Supplement in substantially the form of Exhibit A attached hereto and
shall thereafter for all purposes be a party hereto and have the same rights, benefits and
obligations as a Guarantor party hereto on the Closing Date.
Section 26 Collateral
Each Guarantor hereby acknowledges and agrees that its obligations under this Guaranty are
secured pursuant to the terms and provisions of the Collateral Documents executed by it in favor of
the Collateral Agent, for the benefit of the Secured Parties, and covenants that it shall not grant
any Lien with respect to its property in favor, or for the benefit, of any Person other than the
Collateral Agent, for the benefit of the Secured Parties except as otherwise permitted by Section
7.2 of the Credit Agreement.
Section 27 Costs and Expenses
In accordance with the provisions of Section 10.3 of the Credit Agreement, each Guarantor
agrees to pay or reimburse the Collateral Agent and each of the other Guarantied Parties upon
demand for all reasonable and documented out-of-pocket costs and expenses, including reasonable
fees of one counsel to the Facility Agents (and, if reasonably necessary, a single local counsel in
each relevant jurisdiction) incurred by the Collateral Agent and such other Guarantied Parties in
enforcing this Guaranty against such Guarantor or any security therefor or exercising or enforcing
any other right or remedy available in connection herewith or therewith.
Section 28 Waiver of Consequential Damages
each guarantor hereby irrevocably and unconditionally waives, to the maximum extent not
prohibited by law, any right it may have to claim or recover any special, exemplary, punitive or
consequential damage in any legal action or proceeding in respect of this guaranty or any other
loan document.
Section 29 Entire Agreement
This Guaranty, taken together with all of the other Loan Documents executed and delivered by
the Guarantors, represents the entire agreement and understanding of the parties hereto and
supersedes all prior understandings, written and oral, relating to the subject matter hereof.
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xxxxxxxx
xxxxxxx inc.
xxxxxxx inc.
Section 30 Counterparts
(a) This Guaranty may be executed in any number of separate counterparts and by different
parties in separate counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement. Signature pages may
be detached from multiple counterparts and attached to a single counterpart so that all signature
pages are attached to the same document. Delivery of an executed counterpart by facsimile
transmission or electronic mail shall be effective as delivery of a manually executed counterpart
[signature pages follow]
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IN WITNESS WHEREOF, this Guaranty has been duly executed by the Guarantors as of the day and
year first set forth above.
| The Warnaco Group, Inc., as Guarantor |
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| By: | /s/ Xxxxxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxxxxx X. Xxxxxxxxx | |||
| Title: | Executive Vice President and Chief Financial Officer | |||
| AUTHENTIC FITNESS ON-LINE, INC. CCC ACQUISITION CORP. CKJ HOLDINGS, INC. DESIGNER HOLDINGS LTD. XXXXX XXXXXXX APPAREL CORP. WARNACO PUERTO RICO, INC. WARNACO RETAIL INC. WARNACO SWIMWEAR INC. XXX.XXX INC. WARNACO U.S., INC., as Guarantors |
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| By: | /s/ Xxxxxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxxxxx X. Xxxxxxxxx | |||
| Title: | Vice President and Treasurer | |||
[signature page to guaranty]
| ACKNOWLEDGED AND AGREED as of the date first above written: JPMORGAN CHASE BANK, N.A., as Collateral Agent |
||||
| By: | /s/ Xxxxx Xxxxxxxx | |||
| Name: | Xxxxx Xxxxxxxx | |||
| Title: | Vice President | |||
[signature page to guaranty]
EXHIBIT A
TO
GUARANTY
TO
GUARANTY
FORM OF GUARANTY SUPPLEMENT
The undersigned hereby agrees to be bound as a Guarantor for purposes of the Guaranty, dated
as of June 17, 2011 (the “Guaranty”), by THE WARNACO GROUP, INC. and certain Subsidiaries of
WARNACO INC. party thereto from time to time and acknowledged by JPMorgan Chase Bank, N.A., as
Collateral Agent, and the undersigned hereby acknowledges receipt of a copy of the Guaranty. The
undersigned hereby represents and warrants that each of the representations and warranties
contained in Section 17 of the Guaranty applicable to it is true and correct on and as the date
hereof as if made on and as of such date. Capitalized terms used herein but not defined herein are
used with the meanings given to them in the Guaranty.
IN WITNESS WHEREOF, the undersigned has caused this Guaranty Supplement to be duly executed
and delivered as of , _____.
| [name of subsidiary guarantor] |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| ACKNOWLEDGED AND AGREED as of the date first above written: JPMORGAN CHASE BANK, N.A., as Collateral Agent |
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| By: | ||||
| Name: | ||||
| Title: | ||||
