EXHIBIT 10.17
GUARANTEE AGREEMENT dated as of December 9, 1996, among the
subsidiaries of BRYLANE L.P., a Delaware limited partnership
("Brylane"), listed on Schedule I hereto and such other
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subsidiaries as shall become parties hereto pursuant to Section
15 hereof (such listed and other subsidiaries of Brylane being
referred to herein individually as a "Guarantor" and collectively
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as the "Guarantors"), XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
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as administrative agent (the "Agent") for the lenders (the
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"Lenders") and the Issuing Banks (as defined in the Credit
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Agreement) party to the Credit Agreement dated as of December 9,
1996 (as amended from time to time, the "Credit Agreement") among
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Brylane, the Lenders, the Agent and XXXXXXX XXXXX CAPITAL
CORPORATION, as Documentation Agent (the "Documentation Agent").
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The Lenders have respectively agreed to make loans to Brylane, and the
Issuing Banks (such term and the other capitalized terms used herein and not
otherwise defined herein having the meanings assigned to them in the Credit
Agreement) have agreed to issue the Letters of Credit for the account of
Brylane. The obligations of the Lenders to lend, and of the Issuing Bank 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 Subsidiaries of Brylane, 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.
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, the Issuing Banks, the Agent, the
Security Agent and the Documentation 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 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 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
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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 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, the Documentation Agent,
the Issuing Banks or any Lender to assert any claim or demand or to enforce any
right or remedy against Brylane or
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any 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, the Documentation
Agent, the Issuing Bank or any Lender for the Obligations of any of them; or (d)
the failure of the Agent, the Security Agent, the Documentation Agent, the
Issuing Banks 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 the resort be had by the Agent, the Security
Agent, the Documentation Agent, the Issuing Banks 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, the Security Agent, the Documentation Agent,
the Issuing Banks or any Lender 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, the Documentation Agent, the Issuing
Bank 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, wilful or
otherwise, in the
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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, the Documentation Agent,
the Issuing Banks or any Lender upon the bankruptcy or reorganization of
Brylane, any Guarantor or otherwise.
SECTION 6. In furtherance of the foregoing and not in limitation of
any other right which the Agent, the Security Agent, the Documentation Agent,
the Issuing Banks or any Lender has at law or in equity against any Guarantor by
virtue hereof, upon the failure of Brylane or any 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, the Issuing Banks, the Documentation Agent 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 other 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 other
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,
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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 the 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.
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 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 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, the Documentation Agent, the
Issuing Banks and the Lenders and their respective
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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.
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, the Documentation Agent, the
Issuing Banks 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, the Security Agent, the Documentation Agent, the Issuing Banks 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 singed 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 10.01 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
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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
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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 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 CAPITAL CORP., as a
Guarantor,
by /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: President and Chief Executive Officer
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X.X. CATALOG DISTRIBUTION,
INC., as a Guarantor,
by /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: President and Chief Executive Officer
X.X. CATALOG DISTRIBUTION
PARTNERSHIP, as a Guarantor,
by X.X. CATALOG DISTRIBUTION
INC., General Partner,
by /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: President and Chief Executive Officer
X.X. MANAGEMENT SERVICES,
INC., as a Guarantor,
by /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: President and Chief Executive Officer
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X.X. MANAGEMENT SERVICES
PARTNERSHIP, as a Guarantor,
by X.X. MANAGEMENT SERVICES,
INC., General Partner,
by /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: President and Chief Executive Officer
by B.N.Y. SERVICE CORP.,
General Partner,
by /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Executive Vice President, Chief
Financial Officer, Secretary and
Treasurer
B.N.Y. SERVICE CORP., as a
Guarantor,
by /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Executive Vice President, Chief
Financial Officer, Secretary and
Treasurer
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K.S. MANAGEMENT SERVICES,
INC.,
by /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Executive Vice President, Chief
Financial Officer, Secretary and
Treasurer
C.O.B. MANAGEMENT SERVICES,
INC., as a Guarantor,
by /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Executive Vice President, Chief
Financial Officer, Secretary and
Treasurer
XXXXXXXX'X TRADENAME SUB,
INC., as a Guarantor,
by /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Executive Vice President, Chief
Financial Officer, Secretary and
Treasurer
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, as
administrative agent,
by
___________________________
Name:
Title:
10
SUPPLEMENT NO. 1 dated as of , to the Guarantee
Agreement dated as of December , 1996 (as amended and
supplemented through the date hereof, the "Guarantee Agreement"),
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among the subsidiaries of BRYLANE, L.P., a Delaware limited
partnership ("Brylane"), party thereto (such subsidiaries of
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Brylane being referred to herein individually as a "Guarantor"
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and collectively as the "Guarantors"), XXXXXX GUARANTY TRUST
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COMPANY OF NEW YORK, as administrative agent (the "Agent") for
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the lenders (the "Lenders") and the Issuing Lender (as defined in
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the Credit Agreement) party to the Credit Agreement dated as of
December 9, 1996 (as amended from time to time, the "Credit
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Agreement") among Brylane, the Lenders, the Agent and XXXXXXX
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XXXXX CAPITAL CORPORATION, as Documentation Agent (the
"Documentation Agent").
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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 Agreement, the undersigned
Subsidiary (the "New Guarantor") is required to become a Guarantor under the
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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 foregoing, 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 incorporated herein by reference.
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 authorized, 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.
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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.
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SECTION 8. The New Guarantor agrees to reimburse the Agent for its
reasonable out-of-pocket expenses in connection with this Supplement, including
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
_______________________
Title:
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK, as Agent,
by
________________________
Title:
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