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Exhibit 4.3
CONFORMED COPY
FIRST AMENDMENT AND WAIVER, dated as of July 30, 1999 (this "Amendment"), to the
Credit Agreement, dated as of April 30, 1998 (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among ABERCROMBIE
& FITCH STORES, INC. a corporation organized under the laws of the State of
Delaware (the "Borrower"), ABERCROMBIE & FITCH CO., a corporation organized
under the laws of the State of Delaware (the "Parent"), the several banks and
other financial institutions and entities from time to time parties thereto (the
"Lenders"), and THE CHASE MANHATTAN BANK, as administrative agent (the
"Administrative Agent") for the Lenders.
WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed to
make certain loans to the Borrower; and
WHEREAS, the Borrower has requested that certain provisions of the
Credit Agreement be modified in the manner provided for in this Amendment, and
the Lenders are willing to agree to such modifications as provided for in this
Amendment.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Defined Terms. Capitalized terms used and not defined herein shall
have the meanings given to them in the Credit Agreement, as amended hereby.
2. Amendments to the Credit Agreement.
(a) Section 1.01 of the Credit Agreement is hereby amended by (i)
inserting in appropriate alphabetical order the following definition of
"Permitted Subordinated Debt":
"'Permitted Subordinated Debt' means Indebtedness of the
Parent (and any Guarantees of such Indebtedness by the Borrower or by
Subsidiaries of the Parent that are Guarantors of the obligations
hereunder), the payment of
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which is subordinated to the Parent's obligations under its Guarantee of the
obligations hereunder, provided that such Permitted Subordinated Debt (a)
accrues interest at a rate determined in good faith by the board of
directors of the Parent to be a market rate of interest for such Permitted
Subordinated Debt at the time of issuance thereof, (b) is created under
agreements or instruments that do not, as determined in good faith by the
board of directors of the Parent, (i) impose covenants on the Parent and the
Parent's Subsidiaries, (ii) contain a definition of change of control or
(iii) contain events of default and other provisions, in each case
materially more restrictive than the covenants imposed in, the change of
control definition used in and the events of default and other provisions
contained in this Agreement, (c) does not provide for scheduled principal
payments on such Permitted Subordinated Debt on any date on or prior to the
date which is six months subsequent to the Maturity Date, (d) is unsecured,
(e) is not guaranteed by the Borrower or any Subsidiary unless (i) each such
Subsidiary also has Guaranteed the obligations hereunder and (ii) such
Guarantee of such Permitted Subordinated Debt is subordinated, in the case
of a Subsidiary, to its Guarantee of the obligations hereunder and, in the
case of the Borrower, to its obligations hereunder, in each case on terms no
less favorable to the Lenders than the subordination provisions of the
Permitted Subordinated Debt, (f) does not by its terms require the
maintenance or achievement of any financial performance standards more
restrictive than those contained herein, as determined in good faith by the
board of directors of the Parent, other than as a condition to taking
specified action and (g) the terms of subordination of such Permitted
Subordinated Debt are customary and reasonably satisfactory to the
Administrative Agent."; and
(ii) inserting the following before the period at the end of the
definition of "Restricted Payment":
";provided, that cash payments in lieu of the
issuance of fractional shares upon the conversion of Permitted
Subordinated Debt shall not constitute a Restricted Payment."
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(b) Section 6.01 of the Credit Agreement is hereby amended by:
(i) deleting "and" at the end of clause (f) thereof and
substituting in lieu thereof the following:
";(g) Permitted Subordinated Debt in an aggregate
principal amount of up to $175,000,000; provided that the
proceeds of such Indebtedness are used to fund the
construction of a distribution center and corporate
headquarters of the Parent or the Borrower and, to the extent
not used therefor, up to $100,000,000 for working capital
purposes; and"; and
(ii) relettering clause (g) thereof as clause (h).
(c) Section 6.05 of the Credit Agreement is hereby amended by:
(i) deleting "and" at the end of clause (d) thereof and
substituting in lieu thereof the following:
"; (e) Guarantees constituting Permitted Subordinated
Debt permitted by Section 6.01(g);
(f) Guarantees by the Parent or any Subsidiary of the
Indebtedness hereunder; and "
(ii) relettering clause (e) thereof as clause (g).
(d) Section 6.07 of the Credit Agreement is hereby amended by:
(i) deleting "and" at the end of clause (c) thereof and
substituting in lieu thereof the following:
"(d) if no Default has occurred and is continuing,
the Borrower and the Subsidiaries may declare and pay
dividends to the Parent and other Subsidiaries in amounts
necessary to enable the Parent to make timely interest
payments on any Permitted Subordinated Debt permitted by
Section 6.01(g) and"; and
(ii) relettering clause (d) as clause (e).
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(e) Article VI of the Credit Agreement is hereby amended by inserting
the following after Section 6.12 thereof:
"SECTION 6.13 Prepayments of Permitted Subordinated Debt. The
Parent and the Borrower will not, and will not permit any Subsidiary
to, make, or agree to pay or make, directly or indirectly, any
mandatory or optional prepayment in respect of Permitted Subordinated
Debt as a result of a change of control (as defined in such Permitted
Subordinated Debt) or otherwise (other than payments made in capital
stock of the Parent, including cash payments in lieu of fractional
shares) unless and until all obligations under this Agreement have been
paid in full and all commitments hereunder have been terminated.
(f) Article VII of the Credit Agreement is hereby amended by inserting
the following before ";" at the end of clause (g) thereof: "or to prepayments of
Permitted Subordinated Debt made solely with capital stock of the Parent
(including cash payments in lieu of fractional shares) or the conversion of
Permitted Subordinated Debt into capital stock of the Parent (including cash
payments in lieu of fractional shares)".
3. Waiver. The Lenders hereby expressly waive any rights or remedies in
connection with any breach of or failure by the Parent or the Borrower to comply
with Section 5.09(a) or (b), Section 5.02(a) or any other provision of the
Credit Agreement prior to the date hereof as a result of the failure of the
Parent and the Borrower to (i) notify the Administrative Agent of the formation
or acquisition of the following subsidiaries (collectively, the "New
Subsidiaries"), each an Ohio corporation: Abercrombie & Fitch Fulfillment
Company, Abercrombie & Fitch Production Company and Abercrombie & Fitch
Distribution Company and (ii) cause each New Subsidiary to become a party to the
Guarantee Agreement.
4. No Other Amendments; Confirmation. Except as expressly amended,
waived, modified and supplemented hereby, the provisions of the Credit Agreement
are and shall remain in full force and effect.
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5. Representations and Warranties. Each of the Borrower and the Parent
hereby represents and warrants to the Administrative Agent and the Lenders as of
the date hereof:
(a) No Default or Event of Default has occurred and is continuing.
(b) The execution, delivery and performance by the Borrower and the
Parent of this Amendment have been duly authorized by all necessary
corporate and, if required, stockholder action and do not and will not
require any registration with, consent or approval of, notice to or action
by, any person (including any governmental agency) in order to be effective
and enforceable. The Credit Agreement as amended by this Amendment has been
duly executed and delivered by each of the Parent and the Borrower and
constitutes the legal, valid and binding obligation of each of the Borrower
and the Parent, 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 at equity or at
law.
(c) All representations and warranties of the Borrower contained in the
Credit Agreement (other than representations or warranties expressly made
only on and as of the Effective Date) are true and correct as of the date
hereof.
6. Effectiveness. This Amendment shall become effective only upon the
satisfaction in full of the following conditions precedent:
(a) The Administrative Agent shall have received counterparts hereof,
duly executed and delivered by the Borrower, the Parent and the Required
Lenders;
(b) The Administrative Agent shall have received such opinions and
certificates from the Borrower, the Parent and their counsel as it may
reasonably request in form reasonably satisfactory to its counsel;
(c) The Borrower shall have paid to the Administrative Agent on behalf
of the Lenders that duly execute and
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deliver counterparts hereof on or prior to July 28, 1999 a fee equal to 0.05
percent of the aggregate amount of the outstanding Loans and Commitments
under the Credit Agreement; and
(d) The New Subsidiaries shall have become parties to the Guarantee
Agreement.
7. Expenses. The Borrower agrees to reimburse the Administrative Agent
for its out-of-pocket expenses in connection with this Amendment, including the
reasonable fees, charges and disbursements of Cravath, Swaine & Xxxxx, counsel
for the Administrative Agent.
8. Governing Law; Counterparts. (a) This Amendment and the rights and
obligations of the parties hereto shall be governed by, and construed and
interpreted in accordance with, the laws of the State of New York.
(b) This Amendment may be executed by one or more of the parties to
this Amendment on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument. This Amendment may be delivered by facsimile transmission of the
relevant signature pages hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective proper and duly authorized
officers as of the day and year first above written.
ABERCROMBIE & FITCH STORES,
INC.,
by
/s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: VP/CFO
ABERCROMBIE & FITCH CO.,
by
/s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: VP/CFO
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THE CHASE MANHATTAN BANK,
individually and as
Administrative Agent,
by
/s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Vice President
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BANK OF AMERICA, N.A.,
by
/s/ Xxxxxxx Xxxxxxxxx
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Name: Xxxxxxx Xxxxxxxxx
Title: Managing Director
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THE BANK OF NEW YORK,
by
/s/ Xxxxxxx Xxxxxxxx
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Name: Xxxxxxx Xxxxxxxx
Title: Vice President
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BANKBOSTON, N.A.,
by
/s/ Xxxxxxxx X. Xxxxxx
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Name: Xxxxxxxx X. Xxxxxx
Title: Vice President
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BANK ONE, N.A.,
by
/s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
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THE FIFTH THIRD BANK OF
COLUMBUS,
by
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Name:
Title:
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THE FIRST NATIONAL BANK OF
CHICAGO,
by
/s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
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FIRST UNION NATIONAL BANK,
by
/s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: Assistant Vice President
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FIRSTAR, N.A.,
by
/s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Assistant Vice President
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FLEET NATIONAL BANK,
by
/s/ Xxxxxx X.X. Xxxxxx
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Name: Xxxxxx X.X. Xxxxxx
Title: S.V.P.
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THE HUNTINGTON NATIONAL BANK,
by
/s/ R. Xxxxxxx Xxxxx
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Name: R. Xxxxxxx Xxxxx
Title: Vice President
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NATIONAL CITY BANK,
by
/s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Vice President
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STANDARD CHARTERED BANK,
by
/s/ Xxxxx X. Cutting
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Name: Xxxxx X. Cutting
Title: Senior Vice President
/s/ Xxxxxxxx XxXxxxx
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Name: Xxxxxxxx XxXxxxx
Title: Vice President
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SUNTRUST BANK, CENTRAL FLORIDA,
N.A.,
by
/s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
