Exhibit 4.2
CONFORMED COPY
GUARANTEE AGREEMENT
GUARANTEE AGREEMENT dated as of November 14,
2002, among ABERCROMBIE & FITCH CO., a Delaware
corporation ("Parent"), each direct and indirect
Subsidiary of Parent other than Abercrombie & Fitch
Management Co. (each a "US 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 from time
to time, the "Credit Agreement"), among Abercrombie &
Fitch Management Co. (the "Borrower"), Parent, the
Lenders party thereto and the Agent.
The Lenders have respectively agreed to make loans to
Borrower. 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.
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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.
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.
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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.
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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.
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 US Subsidiary as a result of a transaction that
is permitted by the terms of the Credit Agreement.
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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 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 US Subsidiary of an instrument in the form of
Annex 1 attached hereto, such subsequently acquired or organized US 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/ Xxxxxx XxXxxxxx
-----------------------------------------------
Name: Xxxxxx XxXxxxxx
Title: Vice President and Chief Financial
Officer
ABERCROMBIE & FITCH HOLDING CORPORATION
by:
/s/ Xxxxxxx Xxxxxxxxx
-----------------------------------------------
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Name: Xxxxxxx Xxxxxxxxx
Title: Vice President
A&F TRADEMARK, INC.
by:
/s/ Xxxxxxx Xxxxxxxxx
-----------------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Vice President
ABERCROMBIE & FITCH FULFILLMENT COMPANY
by:
/s/ Xxxxxx XxXxxxxx
-----------------------------------------------
Name: Xxxxxx XxXxxxxx
Title: Vice President and Chief Financial
Officer
ABERCROMBIE & FITCH DISTRIBUTION COMPANY
by:
/s/ Xxxxxx XxXxxxxx
-----------------------------------------------
Name: Xxxxxx XxXxxxxx
Title: Vice President and Chief Financial
Officer
J.M.H. TRADEMARK, INC.
by:
/s/ Xxxxxxx Xxxxxxxxx
-----------------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Vice President
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HOLLISTER CO.
by:
/s/ Xxxxxx XxXxxxxx
-----------------------------------------------
Name: Xxxxxx XxXxxxxx
Title: Vice President and Chief Financial
Officer
X.X. XXXXXXXXX, LLC
by:
/s/ Xxxxxx XxXxxxxx
-----------------------------------------------
Name: Xxxxxx XxXxxxxx
Title: Vice President and Chief Financial
Officer
ABERCROMBIE & FITCH TRADING CO.
by:
/s/ Xxxxxx XxXxxxxx
-----------------------------------------------
Name: Xxxxxx XxXxxxxx
Title: Vice President and Chief Financial
Officer
ABERCROMBIE & FITCH STORES, INC.
by:
/s/ Xxxxxx XxXxxxxx
-----------------------------------------------
Name: Xxxxxx XxXxxxxx
Title: Vice President and Chief Financial
Officer
ABERCROMBIE & FITCH
MERCHANDISING & DESIGN CO.
by:
/s/ Xxxxxx XxXxxxxx
-----------------------------------------------
Name: Xxxxxx XxXxxxxx
Title: Vice President and Chief Financial
Officer
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ABERCROMBIE & FITCH
PROCUREMENT SERVICES, LLC
by:
/s/ Xxxxxx XxXxxxxx
-----------------------------------------------
Name: Xxxxxx XxXxxxxx
Title: Vice President and Chief Financial
Officer
FAN COMPANY, LLC
by:
/s/ Xxxxxx XxXxxxxx
-----------------------------------------------
Name: Xxxxxx XxXxxxxx
Title: Vice President and Chief Financial
Officer
A&F 2001, INC.
by:
/s/ Xxxxxx XxXxxxxx
-----------------------------------------------
Name: Xxxxxx XxXxxxxx
Title: Vice President and Treasurer
FITCH 2001, INC.
by:
/s/ Xxxxxx XxXxxxxx
-----------------------------------------------
Name: Xxxxxx XxXxxxxx
Title: Vice President and Treasurer
A&F WEST COAST HOLDING, INC.
by:
/s/ Xxxxx Xxxxxxx
-----------------------------------------------
Name: Xxxxx Xxxxxxx
Title: President
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A&F MICHIGAN, INC.
by:
/s/ Xxxxxx XxXxxxxx
-----------------------------------------------
Name: Xxxxxx XxXxxxxx
Title: Vice President
HOLLISTER MICHIGAN, LLC
by:
/s/ Xxxxxx XxXxxxxx
-----------------------------------------------
Name: Xxxxxx XxXxxxxx
Title: Vice President of A&F Michigan, Inc.,
its Sole Member
HOLLISTER OHIO, LLC
by:
/s/ Xxxxxxx Xxxxxxxxx
-----------------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Vice President of A&F Ohio, Inc., its
Sole Member
HOLLISTER CALIFORNIA, LLC
by:
/s/ Xxxxxxx X. Xxxxxx
-----------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Manager
A&F CALIFORNIA, LLC
by:
/s/ Xxxxxxx X. Xxxxxx
-----------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Manager
A&F OHIO, INC.
by:
/s/ Xxxxxxx Xxxxxxxxx
-----------------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Vice President
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CANOE, LLC
by:
/s/ Xxxxxx XxXxxxxx
Name: Xxxxxx XxXxxxxx
Title: Vice President and Chief Financial
Officer of Abercrombie & Fitch
Management Co., its Sole Member
XXXXXXX, LLC
by:
/s/ Xxxxxx XxXxxxxx
-----------------------------------------------
Name: Xxxxxx XxXxxxxx
Title: Vice President and Chief Financial
Officer of Abercrombie & Fitch
Management Co., its Sole Member
NATIONAL CITY BANK,
as Administrative Agent
by:
/s/ Xxxxxx X. Xxxxxx
-----------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: 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,
among ABERCROMBIE & FITCH CO., a Delaware corporation
("Parent"), and each direct and indirect Subsidiary
of Parent other than Abercrombie & Fitch Management
Co. (each a "US 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 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 U.S.
Subsidiaries may become Guarantors under the Guarantee Agreement by execution
and delivery of an instrument in the form of this Supplement. The undersigned
U.S. 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 15 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.
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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 Administrative
Agent,
by:
-----------------------------------------
Name:
Title:
