AmendmentNo2toAmendedandRestatedCreditAgreement




    
    






AMENDMENT NO. 2 
TO AMENDED AND RESTATED CREDIT AGREEMENT
dated as of
January 23, 2013
Among
ABERCROMBIE & FITCH MANAGEMENT CO.
THE FOREIGN SUBSIDIARY BORROWERS PARTY HERETO,
as Borrowers,
ABERCROMBIE & FITCH CO., 
as Parent
THE LENDING INSTITUTIONS NAMED HEREIN,
as Lenders,
PNC BANK, NATIONAL ASSOCIATION,
as an LC Issuer, the Swing Line Lender and as a Co-
Lead Arranger and Global Agent  
 
 
 

    









EXECUTION VERSION


AMENDMENT NO. 2 TO AMENDED AND RESTATED CREDIT AGREEMENT


This Amendment No. 2 to Amended and Restated Credit Agreement (this “Amendment”) is made as of January 23, 2013, 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 PNC BANK, NATIONAL ASSOCIATION as the global administrative agent (the “Global Agent”), the Swing Line Lender and an LC Issuer.
RECITALS:


A.    The Company, the Parent, the Foreign Subsidiary Borrowers, the Global Agent and the Lenders are parties to the Amended and Restated Credit Agreement, dated as of July 28, 2011 (as amended by Amendment No. 1 to Credit Agreement, dated as of February 24, 2012 and as further 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 as amended.
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.Amendment to Section 7.01 to the Credit Agreement.  Section 7.01 of the Credit Agreement shall be amended by amending and restating clause (k) as follows:
“(k)    Indebtedness under the Term Loan Facility in an aggregate principal amount not to exceed $150,000,000; and”
2.    Amendment to Section 7.07 to the Credit Agreement.  Section 7.07 of the Credit Agreement shall be amended by amending and restating clause (b) as follows:
“(b)    Coverage Ratio.  The Parent and the Company will not at any time permit the Coverage Ratio to be less than 1.75 to 1.00 at the end of each Testing Period and/or at any time Pro Forma Compliance is required to be demonstrated.”
3.    Conditions Precedent.  The amendments set forth above shall become effective upon the satisfaction of the following conditions precedent:
(a)    this Amendment has been executed by each Borrower, the Parent, the Global Agent and the Required Lenders, and counterparts hereof as so executed shall have been delivered to the Global Agent;





(b)    the Borrowers shall have provided an officer’s certificate that certifies that 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 as of the date of this Amendment, except to the extent that such representations and warranties expressly relate to an earlier specified date, in which case such representations and warranties shall have been true and correct in all material respects as of the date when made; 
(c)    each Guarantor has executed and delivered to the Global Agent the Guarantor Acknowledgment and Agreement attached hereto; 
(d)     each of the following Foreign Revolving Facility Borrowers shall have provided to the Global Agent an incumbency certificate in form and substance satisfactory to the Global Agent:  (i) Abercrombie & Fitch (UK) Limited, (ii) Abercrombie & Fitch Europe S.A. and (iii) AFH Stores UK Limited (formerly known as Hollister Co. (UK) LTD);


(e)    the Global Agent shall have received an executed copy of an amendment to the Term Loan Facility in form and substance satisfactory to the Global Agent; 


(f)    the Borrowers shall have paid to the Global Agent, for the account of each Lender that signs this Amendment, a 0.05% amendment fee based on each such Lender’s Facility Commitment; and


(g)    the Borrowers shall have paid all reasonable out-of-pocket fees and expenses of the Global Agent that have been invoiced on or prior to such date in connection with the preparation, negotiation, execution and delivery of this Amendment.


4.    Representations and Warranties.  The Borrowers and the Parent each hereby represents and warrants to the Global Agent and the Lenders that:  (a) such Credit Party has the legal power and authority to execute and deliver this Amendment; (b) the officials executing this Amendment have been duly authorized to execute and deliver the same and bind such Credit Party with respect to the provisions hereof; (c) the execution and delivery hereof by such Credit Party and the performance and observance by such Credit Party of the provisions hereof do not violate or conflict with the organizational documents of such Credit Party or any law applicable to such Credit Party; (d) no Default or Event of Default exists under the Credit Agreement, nor will any occur immediately after the execution and delivery of this Amendment or by the performance or observance of any provision hereof; and (e) this Amendment constitutes a valid and binding obligation of such Credit Party in every respect, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.
5.    Credit Agreement Unaffected.  Each reference that is made in the Credit Agreement or any other Loan Document shall hereafter be construed as a reference to the Credit Agreement as amended hereby.  Except as herein otherwise specifically provided, all provisions of the Credit Agreement shall remain in full force and effect and be unaffected hereby.
6.    Counterparts.  This Amendment may be executed in any number of counterparts, by different parties hereto in separate counterparts and by facsimile signature, each of which when so executed and delivered shall be deemed to be an original and all of which taken together shall constitute but one and the same agreement.





7.    Entire Agreement.  This Amendment is specifically limited to the matters expressly set forth herein.  This Amendment and all other instruments, agreements and documents executed and delivered in connection with this Amendment embody the final, entire agreement among the parties hereto with respect to the subject matter hereof and supersede any and all prior commitments, agreements, representations and understandings, whether written or oral, relating to the matters covered by this Amendment, and may not be contradicted or varied by evidence of prior, contemporaneous or subsequent oral agreements or discussions of the parties hereto.  There are no oral agreements among the parties hereto relating to the subject matter hereof or any other subject matter relating to the Credit Agreement.
8.    Governing Law; Submission to Jurisdiction; Venue; Waiver of Jury Trial.  
(a)    THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF OHIO WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES.  TO THE FULLEST EXTENT PERMITTED BY LAW, THE BORROWERS AND THE PARENT EACH HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY CLAIM TO ASSERT THAT THE LAW OF ANY JURISDICTION OTHER THAN THE STATE OF OHIO GOVERNS THIS AGREEMENT.  Any legal action or proceeding with respect to this Agreement or any other Loan Document may be brought in the Court of Common Pleas of Cuyahoga County, Ohio, or of the United States for the Northern District of Ohio, and, by execution and delivery of this Agreement, the Borrowers and the Parent each hereby irrevocably accepts for itself and in respect of its property, generally and unconditionally, the jurisdiction of the aforesaid courts.  The Borrowers and the Parent each hereby further irrevocably consents to the service of process out of any of the aforementioned courts in any such action or proceeding by the mailing of copies thereof by registered or certified mail, postage prepaid, to such Credit Party at its address for notices pursuant to Section 11. 04 of the Credit Agreement, such service to become effective 30 days after such mailing or at such earlier time as may be provided under applicable law.  Nothing herein shall affect the right of the Global Agent or any Lender to serve process in any other manner permitted by law or to commence legal proceedings or otherwise proceed against any Credit Party in any other jurisdiction. 
(b)    The Borrowers and the Parent each hereby irrevocably waives any objection that it may now or hereafter have to the laying of venue of any of the aforesaid actions or proceedings arising out of or in connection with this Agreement or any other Loan Document brought in the courts referred to in Section 8(a) above and hereby further irrevocably waives and agrees not to plead or claim in any such court that any such action or proceeding brought in any such court has been brought in an inconvenient forum.
(c)    EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, ANY AMENDMENTS, WAIVERS OR OTHER MODIFICATIONS RELATING THERETO), OR THE TRANSACTIONS CONTEMPLATED HEREBY.  EACH PARTY HERETO HEREBY (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 PARAGRAPH. 
(Signature pages follow.)





IN WITNESS WHEREOF, this Amendment has been duly executed and delivered as of the date first above written.
	
		
	 
	ABERCROMBIE & FITCH MANAGEMENT CO.

	 
	 

	 
	By:       /s/ Everett Gallagher

	 
	Name:  Everett Gallagher

	 
	Title:    Senior Vice President & Treasurer






	
		
	 
	ABERCROMBIE & FITCH CO.

	 
	 

	 
	By:       /s/ Everett Gallagher

	 
	Name:  Everett Gallagher

	 
	Title:    Senior Vice President—Tax, Treasury and
             Risk Management & Treasurer






	
		
	 
	AFH CANADA STORES CO.

	 
	 

	 
	By:       /s/ Everett Gallagher

	 
	Name:  Everett Gallagher

	 
	Title:    Senior Vice President & Treasurer






	
		
	 
	ABERCROMBIE & FITCH (UK) LIMITED
AFH STORES UK LIMITED

	 
	 

	 
	By:       /s/ Boris Djordjevic 

	 
	Name:  Boris Djordjevic 

	 
	Title:    Director






	
		
	 
	ABERCROMBIE & FITCH EUROPE S.A.

	 
	 

	 
	By:       /s/ Boris Djordjevic 

	 
	Name:  Boris Djordjevic 

	 
	Title:    President















	
		
	 
	AFH JAPAN, G.K.
          [seal]

	 
	



                                                                                                          
	
		
	 
	By:       /s/ Takehiko Fukuoka  

	 
	Name:  Takehiko Fukuoka 

	 
	Title:    Executive Manager












	
		
	 
	PNC BANK, NATIONAL ASSOCIATION,
as Global Agent, an LC Issuer, the Swing Line Lender, and a Lender

	 
	 

	 
	By:       /s/ Thomas E. Redmond

	 
	Name:  Thomas E. Redmond

	 
	Title:    Senior Vice President






	
		
	 
	PNC BANK CANADA BRANCH, as a Canadian Lender

	 
	 

	 
	By:       /s/ Caroline Stade

	 
	Name:  Caroline Stade

	 
	Title:    Senior Vice President












	
		
	 
	JPMORGAN CHASE BANK, N.A.,
as a Lender

	 
	 

	 
	By:       /s/ Brendan Korb

	 
	Name:  Brendan Korb

	 
	Title:    Vice President




	
		
	 
	JPMORGAN CHASE BANK, N.A., TORONTO BRANCH, as a Canadian Lender

	 
	 

	 
	By:       /s/ Brendan Korb

	 
	Name:  Brendan Korb

	 
	Title:    Vice President














	
		
	 
	FIFTH THIRD BANK

	 
	 

	 
	By:       /s/ Michael J. Schaltz, Jr.

	 
	Name:  Michael J. Schaltz, Jr.

	 
	Title:    Vice President
















	
		
	 
	THE HUNTINGTON NATIONAL BANK

	 
	 

	 
	By:       /s/ Amanda M. Sigg 

	 
	Name:  Amanda M. Sigg 

	 
	Title:    Vice President












	
		
	 
	BANK OF AMERICA, N.A.

	 
	 

	 
	By:       /s/ Jaime C. Eng 

	 
	Name:  Jaime C. Eng  

	 
	Title:    Vice President 












	
		
	 
	CITIZENS BANK OF PENNSYLVANIA

	 
	 

	 
	By:       /s/ Carl S. Tabacjar, Jr.  

	 
	Name:  Carl S. Tabacjar, Jr.  

	 
	Title:    Vice President












	
		
	 
	SUMITOMO MITSUI BANKING CORPORATION

	 
	 

	 
	By:       /s/ David W. Kee 

	 
	Name:  David W. Kee 

	 
	Title:    Managing Director 












	
		
	 
	U.S. BANK NATIONAL ASSOCIATION

	 
	 

	 
	By:       /s/ Mark D. Rodgers 

	 
	Name:  Mark D. Rodgers 

	 
	Title:    Assistant Vice President
















GUARANTOR ACKNOWLEDGMENT AND AGREEMENT


Each of the undersigned (collectively, the “Guarantors” and, individually, “Guarantor”) consents and agrees to and acknowledges the terms of the foregoing Amendment No. 2 to Amended and Restated Credit Agreement, dated as of January 23, 2013 (the “Amendment”).  Each Guarantor specifically acknowledges the terms of and consents to the amendments set forth in the Amendment.  Each Guarantor further agrees that its obligations pursuant to the Domestic Credit Party Guaranty shall remain in full force and effect and be unaffected hereby. 
EACH GUARANTOR HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS GUARANTOR ACKNOWLEDGMENT AND AGREEMENT OR THE AMENDMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.  EACH GUARANTOR HEREBY CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER.
(Signature page follows.)







IN WITNESS WHEREOF, this Guarantor Acknowledgment and Agreement has been duly executed and delivered as of the date of the Amendment.
	
		
	 
	ABERCROMBIE & FITCH CO.

	 
	 

	 
	By:       /s/ Everett Gallagher

	 
	Name:  Everett Gallagher

	 
	Title:    Senior Vice President—Tax, Treasury and
             Risk Management & Treasurer




	
		
	 
	ABERCROMBIE & FITCH HOLDING CORPORATION
A&F TRADEMARK, INC.
ABERCROMBIE & FITCH FULFILLMENT COMPANY
ABERCROMBIE & FITCH DISTRIBUTION COMPANY
J.M.H. TRADEMARK, INC.
J.M. HOLLISTER, LLC
ABERCROMBIE & FITCH TRADING CO.
ABERCROMBIE & FITCH STORES, INC.
FAN COMPANY, LLC
HOLLISTER CO.
ABERCROMBIE & FITCH INTERNATIONAL, INC.
GILLY HICKS, LLC
DFZ, LLC
A&F CANADA HOLDING CO.
CANOE, LLC
CROMBIE, LLC
RUEHL NO. 925, LLC
AFH PUERTO RICO LLC
NSOP, LLC

	 
	 

	 
	By:       /s/ Everett Gallagher

	 
	Name:  Everett Gallagher

	 
	Title:    Senior Vice President & Treasurer






	
		
	 
	ABERCROMBIE & FITCH PROCUREMENT SERVICES, LLC 
By:  Abercrombie & Fitch Trading Co., its Sole Member

	 
	 

	 
	By:       /s/ Everett Gallagher

	 
	Name:  Everett Gallagher

	 
	Title:    Senior Vice President & Treasurer
            Abercrombie & Fitch Trading Co.













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