Exhibit 10.1
FIRST AMENDMENT TO CREDIT AGREEMENT AND GUARANTY AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT AND GUARANTY AGREEMENT (this
"Amendment") is made as of the 11/th/ day of September, 2002 by and among URBAN
OUTFITTERS, INC., a Pennsylvania corporation ("Urban"), the Subsidiaries party
to the Credit Agreement referenced below, the Guarantors party to the Guaranty
Agreement referenced below, the Lenders who are or may become party to the
Credit Agreement, and WACHOVIA BANK, NATIONAL ASSOCIATION (formerly known as
First Union National Bank), as Administrative Agent (the "Bank").
RECITALS:
Urban, the Subsidiaries listed on Schedule 1 thereto, the Lenders referred
to therein, and the Bank (as Administrative Agent) entered into a certain Credit
Agreement dated the 12/th/ day of September, 2001 (the "Credit Agreement").
Anthropologie, Inc., Urban Outfitters Wholesale, Inc., Urban Outfitters Direct
LLC, Anthropologie Direct LLC, U.O.D., Inc., U.O.D. Secondary, Inc. and UOGC
(collectively, the "Original Guarantors") executed a Guaranty Agreement dated
September 12, 2001 (the "Guaranty") in favor of the Bank (as Administrative
Agent) and the Lenders. Urban Outfitters West LLC ("West LLC") joined the
Guaranty by a Supplement dated as of October 1, 2001, and Free People LLC "Free
People") joined the Guaranty by a Supplement dated as of May 21, 2002 (West LLC
and Free People are to be referred to collectively as the "Additional
Guarantors", and the Original Guarantors together with the Additional Guarantors
shall be referred to collectively as the "Guarantors"). Capitalized terms used
in this Amendment which are not otherwise defined in this Amendment shall have
the respective meanings assigned to them in the Credit Agreement.
The Borrowers and the Bank wish to amend the Credit Agreement in certain
respects, and the Guarantors and the Bank wish to amend the Guaranty Agreement,
as hereinafter provided.
NOW, THEREFORE, in consideration of the Recitals and the mutual promises
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Borrowers and the Bank,
intending to be legally bound hereby, agree as follows:
SECTION 1. Recitals. The Recitals are incorporated herein by reference and shall
be deemed to be a part of this Amendment.
SECTION 2. Amendments to the Credit Agreement. The Credit Agreement is hereby
amended as set forth in this Section 2.
SECTION 2.1 Amendments to Definitions. The definitions set forth in Section 1.1
of the Credit Agreement are hereby amended by:
(a) amending and restating in their entirety as set forth below the following
defined terms:
"Aggregate Commitment" means the aggregate amount of the Lenders'
Commitments hereunder, as such amount may be reduced or modified at any time or
from time to time pursuant to the terms hereof. On the Amendment Effective Date,
the Aggregate Commitment shall be Thirty Million Dollars ($30,000,000).
"L/C Commitment" means (a) in the case of documentary Letters of Credit,
the Aggregate Commitment, and (b) in the case of standby Letters of Credit, the
lesser of (i) the Aggregate Commitment and (ii) Five Hundred Thousand Dollars
($500,000).
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(b) adding the following definition to Section 1.1 of the Credit Agreement
in appropriate alphabetical order:
"Amendment Effective Date" means the date of effectiveness of the
First Amendment to Credit Agreement, as defined in Section 4 of the First
Amendment.
SECTION 2.2 Amendment to Section 2.4. The reference in the last sentence of
Section 2.4 of the Credit Agreement to "the Closing Date" shall be deleted and
replaced by a reference to "the Amendment Effective Date."
SECTION 2.3 Amendment to Section 2.6. The reference to September 11, 2002
contained in Section 2.6(a) of the Credit Agreement shall be deleted and
replaced by a reference to September 10, 2003.
SECTION 2.4 Amendment to Section 6.1. Sections 6.1(o) and 6.1(p) of the Credit
Agreement are amended by changing the date specified therein from "January 31,
2001" to "January 31, 2002."
SECTION 2.5 Amendment to Section 10.13. Section 10.13 of the Credit Agreement is
deleted in its entirety and replaced with the following:
Section 10.13. Capital Expenditures. Make Capital Expenditure
Payments exceeding $50,000,000 in the aggregate in the Fiscal Year ending
January 31, 2004.
SECTION 2.6 Amendment to Section 13.1. The contact information for notices to
First Union contained in Section 13.1 of the Credit Agreement is hereby modified
so that all notices under that Section shall be sent to Wachovia at: Wachovia
Securities, Inc., 0000 Xxxxxxxx Xxxxxx, XX 0000, Xxxxxxxxxxxx, XX 00000,
Attention: Xxxxx Xxxxxx, Vice President, Telephone No.: (000)000-0000, Telecopy
No.: (000) 000-0000, with copies to: Wachovia Securities, Inc., 0000 Xxxxxxxx
Xxxxxx, XX 0000, Xxxxxxxxxxxx, XX 00000, Attention: Xxx Xxxxxx, Director,
Telephone No.: (000)000-0000, Telecopy No.: (000) 000-0000. The contact
information for Pepper, Xxxxxxxx shall remain the same.
SECTION 2.7 Replacement of Schedules 2 and 3. Schedules 2 and 3 to the Credit
Agreement are hereby replaced with the new Schedule 2 and Schedule 3 attached
hereto and made a part hereof.
SECTION 3. Amendment to the Guaranty. The Guaranty is hereby amended as set
forth in this Section 3.
SECTION 3.1 Amendment to the "WHEREAS" Clauses. The references in each of the
second and third "Whereas" clauses of the Guaranty to "Twenty-Five Million
Dollars ($25,000,000)" are hereby deleted, and replaced by a reference to
"Thirty Million Dollars ($30,000,000)."
SECTION 3.2. Amendment to Section 13. The contact information for notices to the
Administrative Agent contained in Section 13 of the Guaranty is hereby modified
so that all notices under that Section shall be sent to Wachovia at: Wachovia
Securities, Inc., 0000 Xxxxxxxx Xxxxxx, XX 0000, Xxxxxxxxxxxx, XX 00000,
Attention: Xxxxx Xxxxxx, Vice President, Telephone No.: (000)000-0000, Telecopy
No.: (000) 000-0000, with copies to: Wachovia Securities, Inc., 0000 Xxxxxxxx
Xxxxxx, XX 0000, Xxxxxxxxxxxx, XX 00000, Attention: Xxx Xxxxxx, Director,
Telephone No.: (000)000-0000, Telecopy No.: (000) 000-0000. The contact
information for Pepper, Xxxxxxxx shall remain the same.
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SECTION 4. Conditions to Effectiveness. The effectiveness of this Amendment and
the obligations of the Bank hereunder are subject to the satisfaction of the
following conditions (the "Amendment Effective Date"):
(a) the Bank shall have received (i) from each of the Borrowers and
each of the Guarantors a counterpart hereof signed by such party or
facsimile or other written confirmation (in form satisfactory to Bank)
that such party has signed a counterpart hereof; (ii) from each of the
Borrowers, a duly executed counterpart of the Note in the amount of
the Aggregate Commitment, which Note shall replace and supercede any
prior Notes; and (iii) from each of the Additional Guarantors, a duly
executed supplement to the existing Guaranty Agreement, in form and
substance acceptable to the Bank, each dated as of the date on which
such Additional Guarantor was created or acquired by any of the
Borrowers, together with a favorable legal opinion for each Additional
Guarantor addressed to the Bank as the Administrative Agent, and the
Lenders, in form and substance satisfactory to the Bank;
(b) the Bank shall have received a certificate signed by a Responsible
Officer of Urban, dated the Amendment Effective Date, stating that:
(i) no Default or Event of Default exists; and
(ii) the representations and warranties of each of the Borrowers
contained in the Credit Agreement are true and correct on and as of
such date, as though made on and as of such date;
(c) the Bank shall have received all documents it may reasonably
request relating the existence of each Borrower and Guarantor
(including the Additional Guarantors), the corporate authority for and
the validity of this Amendment, and any other matters relevant hereto,
all in form and substance satisfactory to the Bank, including, without
limitation, resolutions duly adopted by the board of directors of each
Borrower and Guarantor (including the Additional Guarantors)
authorizing the borrowings contemplated hereunder (and the obligations
of the Guarantors (including the Additional Guarantors) pursuant to
the Guaranty Agreement with respect thereto) and the execution,
delivery and performance of this Amendment; and
(d) The Bank shall have received payment of the $25,000 Administration
Fee due and owing pursuant to Section 4.3(b) of the Credit Agreement.
SECTION 5. No Other Amendment. Except for the amendments set forth above, the
text of the Credit Agreement and each of the other Loan Documents, including,
without limitation, the Guaranty Agreement, shall remain unchanged and in full
force and effect. This Amendment is not intended to effect, nor shall it be
construed as, a novation. The Credit Agreement and this Amendment shall be
construed together as a single agreement. Nothing herein contained shall waive,
annul, vary or affect any provision, condition, covenant or agreement contained
in the Credit Agreement, except as herein amended, nor affect or impair any
rights, powers or remedies under the Credit Agreement as hereby amended. The
Borrowers promise and agree to perform all of the requirements, conditions,
agreement and obligations under the terms of the Credit Agreement, as hereby
amended, the Credit Agreement, as amended, being hereby ratified and affirmed.
The Borrowers hereby expressly agree that the Credit Agreement, as amended, and
each of the other Loan Documents, is in full force and effect. In addition,
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the consent letter dated January 31, 2002 by and between Urban (for itself and
each of the Borrowers) and the Bank shall remain in full force and effect.
SECTION 6. Representations and Warranties. Each of the Borrowers hereby
represents and warrants to the Bank as follows:
(a) No Default, or Event of Default, nor any act, event, condition or
circumstance which with the passage of time or the giving of notice,
or both, would constitute an Event of Default, under the Credit
Agreement or any other Loan Document has occurred and is continuing
unwaived by the Bank on the date hereof;
(b) The representations and warranties of the Borrowers set forth in
Section 6.1 of the Credit Agreement (as amended hereby) shall be true
on and as of the Amendment Effective Date.
(c) Each of the Borrowers has the power and authority to enter into this
Amendment and to do all acts and things as are required or
contemplated hereunder, or thereunder, to be done, observed and
performed by it.
(d) This Amendment has been duly authorized, validly executed and
delivered by one or more authorized officers of each Borrower and
constitutes a legal, valid and binding obligation of each of the
Borrowers, enforceable against each of the Borrowers in accordance
with its terms, provided that such enforceability is subject to
general principles of equity.
(e) The execution and delivery of this Amendment and the performance
hereunder by each of the Borrowers does not and will not require the
consent or approval of any regulatory authority or governmental
authority or agency having jurisdiction over any Borrower, nor be in
contravention of or in conflict with the certificate of incorporation
or bylaws of any Borrower, or the provision of any statute, or any
judgement, order, indenture, instrument, agreement or undertaking, to
which any Borrower is party or by which the assets or properties of
any Borrower are or may become bound.
SECTION 7. Counterparts. This Amendment may be executed in multiple counterparts
each of which shall be deemed to be an original and all of which,
taken together, shall constitute one and the same agreement.
SECTION 8. Governing Law. This Amendment shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania, without reference
to the conflicts or choice of law principles thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed, under seal, by their respective authorized officers as of the day and
year first above written.
Borrowers:
[CORPORATE SEAL] URBAN OUTFITTERS, INC.,
as a Borrower
By: /S/ Xxxxxxx X. Xxxxx
--------------------
Name: Xxxxxxx X. Xxxxx
Title: President
[CORPORATE SEAL] UO FENWICK, INC.,
as a Borrower
By: /S/ Xxxxxxx X. Xxxxxxx
----------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
[CORPORATE SEAL] INTER-URBAN, INC.,
as a Borrower
By: /S/ Xxxxxxx X. Xxxxxxx
----------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
[CORPORATE SEAL] URBAN OUTFITTERS (DELAWARE), INC.,
as a Borrower
By: /S/ Xxxxxxx X. Xxxx
-------------------
Name: Xxxxxxx X. Xxxx
Title: Treasurer
[CORPORATE SEAL] ANTHROPOLOGIE (DELAWARE), INC.,
as a Borrower
By: /S/ Xxxxxxx X. Xxxx
-------------------
Name: Xxxxxxx X. Xxxx
Title: Treasurer
[CORPORATE SEAL] URBAN OUTFITTERS UK LIMITED,
as a Borrower
By: /S/ Xxxxxxx X. Xxxxx
--------------------
Name: Xxxxxxx X. Xxxxx
Title: Director
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[CORPORATE SEAL] URBAN OUTFITTERS UK LIMITED,
as a Borrower
By: /S/ Xxxxxxx X. Xxxxxxx
----------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Director
[CORPORATE SEAL] URBAN OUTFITTERS IRELAND LIMITED,
as a Borrower
By: /S/ Xxxxxxx X. Xxxxxxx
----------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Director
[CORPORATE SEAL] URBAN OUTFITTERS IRELAND LIMITED,
as a Borrower
By: /S/ Xxxx X. Xxxxx
-----------------
Name: Xxxx X. Xxxxx
Title: Director
Lenders:
WACHOVIA BANK, NATIONAL ASSOCIATION
as a Lender and as Administrative Agent
By: /S/ Xxxxx X. Xxxxxx
-------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
ACKNOWLEDGED AND AGREED BY GUARANTORS:
ANTHROPOLOGIE, INC. [CORPORATE SEAL]
By: /S/ Xxxx X. Xxxx
----------------
Name: Xxxx X. Xxxx
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Title: President
URBAN OUTFITTERS WHOLESALE, INC. [CORPORATE SEAL]
By: /S/ Xxxxxxx X. Xxxx
-------------------
Name: Xxxxxxx X. Xxxx
Title: Treasurer
URBAN OUTFITTERS DIRECT, LLC [CORPORATE SEAL]
By: /S/ Xxxxxxx X. Xxxxxxx
----------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Chief Financial Officer
ANTHROPOLOGIE DIRECT, LLC [CORPORATE SEAL]
By: /S/ Xxxxxxx X. Xxxxxxx
----------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Chief Financial Officer
U.O.D., INC. [CORPORATE SEAL]
By: /S/ Xxxxxxx X. Xxxxxxx
----------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
U.O.D. SECONDARY, INC. [CORPORATE SEAL]
By: /S/ Xxxxxxx X. Xxxxxxx
----------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
UOGC, INC. [CORPORATE SEAL]
By: /S/ Xxxxxxx X. Xxxxxxx
----------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Chief Financial Officer
URBAN OUTFITTERS WEST LLC [CORPORATE SEAL]
By: /S/ Xxxxxxx X. Xxxxxxx
----------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Chief Financial Officer
FREE PEOPLE LLC [CORPORATE SEAL]
By: /S/ Xxxxxxx X. Xxxx
-------------------
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Name: Xxxxxxx X. Xxxx
Title: Treasurer
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Schedule 2
Lenders and Commitments
Lender Commitment
Wachovia Bank, National Association $30,000,000
0000 Xxxxxxxx Xxxxxx, XX 0000
Xxxxxxxxxxxx, XX 00000-0000
Attention: Xxxxx Xxxxxx, Vice President
Telephone No.: (000)000-0000
Telecopy No.: (000) 000-0000
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Schedule 3
Guarantors
Anthropologie, Inc., a Pennsylvania corporation
Urban Outfitters Wholesale, Inc., a Pennsylvania corporation
Urban Outfitters Direct, LLC, a Pennsylvania limited liability company
Anthropologie Direct, LLC, a Pennsylvania limited liability company
U.O.D., Inc., a Delaware corporation
U.O.D. Secondary, Inc., a Delaware corporation
UOGC, Inc., a Florida corporation
Urban Outfitters West LLC, a Californialimited liability company
Free People LLC, a Delawarelimited liability company
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