AMENDMENT NO. 1 TO CREDIT
AGREEMENT
This
Amendment No. 1 to Credit Agreement (this “
Amendment ”) is made as of December 29, 2008, by
and among ABERCROMBIE & FITCH MANAGEMENT CO., a Delaware
corporation (the “ Company ”), the Foreign
Subsidiary Borrowers party hereto (together with the Company, each
a “ Borrower ” and collectively, the “
Borrowers ”), ABERCROMBIE & FITCH CO., a Delaware
corporation (the “ Parent ”), the lenders party
hereto (each a “ Lender ” and collectively, the
“ Lenders ”), and NATIONAL CITY BANK, as the
Swing Line Lender, an LC Issuer and the global agent (the “
Global Agent) .
A.
The Company, the Foreign Subsidiary Borrowers, the Global Agent and
the Lenders are parties to the Credit Agreement, dated as of
April 15, 2008 (as amended, restated, supplemented or
otherwise modified from time to time, the “ Credit
Agreement ”).
B.
The Borrowers, the Global Agent and the Lenders desire to further
amend the Credit Agreement as more fully set forth
herein.
C.
Each capitalized term used herein and not otherwise defined herein
shall have the same meaning set forth in the Credit
Agreement.
In
consideration of the premises and mutual covenants herein and for
other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Borrowers, the Global Agent
and the Lenders agree as follows:
1. New
Definitions . The following definitions shall be added to
Section 1.01 of the Credit Agreement in the appropriate
alphabetical order:
“
Consolidated Tangible Assets ” means, at any time, the
aggregate amount of assets of the Parent and the Subsidiaries,
minus all goodwill, trade names, trademarks, patents and other
intangible assets of the Parent and the Subsidiaries, all as set
forth in the consolidated balance sheet of the Parent and the
Subsidiaries most recently delivered by the Parent and the Company
pursuant to Section 6.01, on such date of determination,
determined on a consolidated basis in accordance with
GAAP.
“ First
Amendment Effective Date ” means December 29,
2008.
“ UBS
Demand Line ” means a non-committed demand line of
credit, pursuant to documentation in form and substance reasonably
satisfactory to the Global Agent, provided by UBS Bank USA (or an
affiliate thereof) to the Company secured solely by the UBS
Collateral.
“ UBS
Collateral ” means the following property, wherever
located and whether owned now or acquired or arising in the future:
(i) each UBS Collateral Account; (ii) any and all money,
credit balances, certificated and uncertificated securities,
security entitlements, commodity contracts, certificates of
deposit, instruments, documents, partnership interests, general
intangibles, financial assets and other investment property now or
in the future
credited to or
carried, held or maintained in any UBS Collateral Account;
(iii) any and all over-the-counter options, futures, foreign
exchange, swap or similar contracts between the Company and either
UBS Financial Services Inc. or an Affiliate thereof; (iv) any
and all accounts of the Company at UBS Bank USA or any of its
Affiliates; (v) any and all supporting obligations and other
rights ancillary or attributable to, or arising in any way in
connection with, any of the foregoing and any other agreement
entered into between UBS Bank USA and UBS Financial Services Inc.,
UBS-I or any other securities intermediary maintaining a UBS
Collateral Account with entitlement orders and instructions from
UBS Bank USA (or from any assignee or successor of UBS Bank USA)
regarding the UBS Collateral Account and any financial assets or
other property held therein without the further consent of UBS Bank
USA or any other pledgor on the UBS Collateral Account; and
(vi) any and all interest, dividends, distributions and other
proceeds of any of the foregoing, including proceeds of
proceeds.
“ UBS
Collateral Account ” means individually and collectively,
each account of the Company or other pledgor at UBS Financial
Services Inc. or UBS International Inc., as applicable, that is
either identified as a Collateral Account on the application to
which the UBS Demand Line is attached or subsequently identified as
a Collateral Account by the Company (either directly or indirectly
through the Company’s UBS Financial Services Inc., financial
advisor) or other pledgor together with all successors to those
identified accounts, irrespective of whether the successor account
bears a different name or account number.
2.
Amendments to Section 1.01 to the Credit Agreement. The
following definitions contained in Section 1.01 of the Credit
Agreement shall be amended and restated in their entirety to read
as follows:
“
Material Subsidiary ” means (a) the Borrowers,
(b) any Subsidiary owning an Equity Interest in a Material
Subsidiary and (c) any other Subsidiary (i) the
consolidated revenues of which for the most recent fiscal year of
the Parent for which audited financial statements have been
delivered pursuant to Section 6.01 were greater than 10% of
the Parent’s consolidated revenues for such fiscal year or
(ii) that as of the end of such fiscal year comprised greater
than 10% of the Consolidated Tangible Assets as of such date, or
(iii) the EBITDAR of which as of the end of such fiscal year
was greater than 10% of Consolidated EBITDAR for such fiscal
year.
“ Minimum
Rent ” means total store rent expense less
contingent store rent less non-cash rent expense.
“
Revolving Facility LC Commitment Amount ” means
(a) with respect to Trade Letters of Credit, $450,000,000 or
the Dollar Equivalent thereof in Designated Foreign Currency (as
the same may be decreased pursuant to Section 2.12 or as the
same may be increased pursuant to Section 2.17), and
(b) with respect to Standby Letters of Credit, (i) from the
First Amendment Effective Date to 12/31/08, $45,000,000;
(ii) from January 1, 2009 through December 31, 2009,
$150,000,000; (iii) from January 1, 2010 through
December 31, 2010, $260,000,000; and (iv) thereafter,
$375,000,000.
3.
Amendment to Section 4.14 . Section 4.14 of the
Credit Agreement shall be amended and restated in its entirety as
follows:
“Section 4.14
Insurance . The Parent and each of its Subsidiaries
maintains insurance coverage by such insurers and in such forms and
amounts and against such risks as are generally consistent with
industry standards and in each case in compliance with the terms of
Section 6.05.”
2
4. Amendment
to Section 7.01 . Section 7.01 of the Credit
Agreement shall be amended by deleting the “and”
following clause (h) thereof, deleting the “.”
following clause (i) thereof and replacing it with “;
and” and adding the following clause
(j) thereto:
”(j) Indebtedness
of the Parent or any of its Subsidiaries incurred solely in
connection with the UBS Demand Line in an aggregate principal
amount not to exceed $76,500,000.”
5.
Amendment to Section 7.02 . Section 7.02 of the
Credit Agreement shall be amended by deleting the “and”
following clause (g) thereof, deleting the “.”
following clause (h) thereof and replacing it with “;
and” and adding the following clause
(i) thereto:
”(i) Liens,
if any, on the UBS Collateral and securing the UBS Demand Line of
the Parent and its Subsidiaries.”
6.
Amendment to Section 7.06 . Section 7.06, clause
(b) of the Credit Agreement shall be amended and restated in
its entirety as follows:
”(b) so
long as no Default or Event of Default has occurred and is
continuing, the Parent may declare, and if declared when no Default
or Event of Default exists, the Parent may pay, dividends in cash
so long as the Parent would be in Pro Forma Compliance with the
financial covenants set forth in Section 7.07 after giving
effect thereto;”
7.
Amendment to Schedule I . Schedule I shall be
amended and restated in its entirety as set forth on schedule I
attached hereto.
8.
Conditions Precedent . The amendments set forth above shall
become effective upon the satisfaction of the following conditions
precedent (the “ Amendment No. 1 Effective Date
”):
(a) this
Amendment has been executed by each Borrower, the Parent, the
Global Agent and the Lenders, and counterparts hereof as so
executed shall have been delivered to the Global Agent;
(b) all
representations and warranties of the Credit Parties contained in
the Credit Agreement or in the other Loan Documents shall be true
and correct in all material respects with the same effect as though
such representations and warranties had been made on and
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