Exhibit 10.2
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (this "Second Amendment") is
made as of the 15th day of November, 2002, by and among URBAN OUTFITTERS, INC.,
a Pennsylvania corporation ("Urban"), and certain of its subsidiaries listed on
Schedule 1 to the Credit Agreement (as defined below) (together with Urban,
individually and collectively, the "Borrowers"); the Lenders party to the Credit
Agreement defined below, WACHOVIA BANK, NATIONAL ASSOCIATION (formerly known as
First Union National Bank), as administrative agent for the Lenders
("Administrative Agent") and JPMORGAN CHASE BANK, as a lender and an Issuing
Bank ("JPMC").
BACKGROUND
Borrowers and Administrative Agent entered into a Credit Agreement
dated September 12, 2001, as amended by First Amendment to Credit Agreement and
Guaranty Agreement dated September 11, 2002 (as amended hereby and as may be
further amended, restated or modified from time to time, the "Credit Agreement")
to fund the Borrowers' working capital and general corporate requirements and
support the issuance of letters of credit for the account of any Borrower.
JPMC is becoming a Lender under the Credit Agreement under an
Assignment and Acceptance Agreement dated of even date herewith.
Borrowers, Lenders, Administrative Agent and JPMC have agreed to
certain amendments to the Credit Agreement, each as set forth herein and subject
to the terms and conditions hereof.
In consideration of the foregoing and the premises and the agreements
hereinafter set forth, and intending to be legally bound hereby, effective as of
the Second Amendment Effective Date (as defined below), the parties hereto agree
as follows:
1. Definitions.
a. General Rule. Unless otherwise defined herein, terms used
herein which are defined in the Credit Agreement shall have the respective
meanings assigned to such terms in the Credit Agreement.
b. Additional Definitions. As of the Second Amendment Effective
Date, the following definitions are hereby added to Section 1.1 of the Credit
Agreement in proper alphabetical order to read as follows:
"JPMC" means JPMorgan Chase Bank, a New York state
banking association, and its successors.
"Second Amendment" means Second Amendment to Credit
Agreement by and among Borrowers, Lenders, Administrative
Agent and JPMorgan Chase Bank dated November __, 2002.
"Second Amendment Effective Date" means the date on
which the conditions set forth in Paragraph 15 of the Second
Amendment have been satisfied.
"Wachovia" means Wachovia Bank, National Association
(formerly known as First Union National Bank), a national
banking association, and its successors.
c. Amended Definition. As of the Second Amendment Effective
Date, the following definition found in Section 1.1 of the Credit Agreement is
hereby amended and restated to read in its entirety as follows:
"Issuing Lender" means, collectively, Wachovia and JPMC,
each in its capacity as issuer of any Letter of Credit, or
any successor thereto.
d. Replaced Definition. All references in the Credit Agreement
to "First Union" shall be deemed to be references to "Wachovia."
2. Amendment and Restatement of Schedule 2 (Lenders and
Commitments). As of the Second Amendment Effective Date, Schedule 2 to the
Credit Agreement (Lenders and Commitments) is amended and restated in its
entirety as set forth on Schedule 2 hereto, to reflect the addition of JPMC as a
Lender.
3. Deletion of Schedule 5 to the Credit Agreement. As of the Second
Amendment Effective Date, Schedule 5 to the Credit Agreement (Import Letter of
Credit Pricing) is hereby deleted in its entirety.
4. Amendment to Section 3.1 of the Credit Agreement (L/C
Commitment.) As of the Second Amendment Effective Date, the lead-in to Section
3.1 of the Credit Agreement is hereby amended and restated in its entirety as
follows:
Section 3.1 L/C Commitment. Subject to the terms and
conditions hereof, each Issuing Lender: (i) agrees to issue
standby and documentary letters of credit for the account of
any Borrower or Guarantor and (ii) agrees to issue Alternate
Currency Letters of Credit for the account of any Non-U.S.
Borrower (collectively, "Letters of Credit"), on any Business
Day from the Closing Date through but not including the
Termination Date in such form as may be approved from time to
time by each Issuing Lender; provided, that no Issuing Lender
shall have any obligation to issue any Letter of Credit if:
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5. New Section 3.1(b)(vi) of the Credit Agreement (L/C Commitment).
As of the Second Amendment Effective Date, a new Section 3.1(b)(vi) is hereby
added to the Credit Agreement as follows:
vi. at the time of issuance of any Letter of Credit by
JPMC, the amount available to be drawn under the Letter of Credit requested from
JPMC together with the face amount of all other outstanding Letters of Credit
issued by JPMC plus any unreimbursed draws under Letters of Credit issued by
JPMC shall not exceed Ten Million Dollars ($10,000,000);
6. Amendment to Section 3.2(d) of the Credit Agreement (Terms of
Letters of Credit). As of the Second Amendment Effective Date, Section 3.2(d) of
the Credit Agreement is hereby amended and restated in its entirety as follows:
(d) be subject to the Uniform Customs and, to the extent not
inconsistent therewith: (i) the laws of the Commonwealth of
Pennsylvania, with respect to Wachovia as the Issuing Lender,
or (ii) the laws of the State of New York, with respect to
JPMC as the Issuing Lender.
7. Amendment to Section 3.5 of the Credit Agreement (Procedure for
Issuance of Letters of Credit.) As of the Second Amendment Effective Date,
Section 3.5 of the Credit Agreement is hereby amended and restated in its
entirety as follows:
Section 3.5 Procedure for Issuance of Letters of Credit. The
Borrowers may from time to time request that an Issuing
Lender issue a Letter of Credit, or request that a Letter of
Credit be amended or extended, by delivering to such Issuing
Lender (which Issuing Lender shall be at the discretion of
Borrowers, subject to the terms of Section 3.1(b)(vi) hereof)
at its office listed in Section 13.1(b), an Application
therefor, completed to the satisfaction of the Issuing
Lender, and such other certificates, documents and other
papers and information as the Issuing Lender may request.
Upon receipt of any Application, the Issuing Lender shall
process such Application and the certificates, documents and
other papers and information delivered to it in connection
therewith in accordance with its customary procedures and
shall, subject to Section 3.1 and Article V hereof, promptly
issue the Letter of Credit requested thereby (but in no event
shall the Issuing Lender be required to issue any standby
Letter of Credit earlier than three (3) Business Days, or any
documentary Letter of Credit earlier than one (1) Business
Day, after its receipt of the Application therefor and all
such other certificates, documents and other papers and
information relating thereto) by issuing the original of such
Letter of Credit to the beneficiary thereof or as otherwise
may be agreed by the Issuing Lender and the Borrowers. The
Issuing
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Lender shall promptly furnish to the Borrowers a copy of such
Letter of Credit.
8. Amendment to Section 3.6(b) of the Credit Agreement (Commissions
and Other Charges.) As of the Second Amendment Effective Date, Section 3.6(b) of
the Credit Agreement is hereby amended and restated in its entirety as follows:
(b) In connection with the issuance, transfer,
extension, modification or other administration of any Letter
of Credit, the Borrowers shall pay to the Issuing Lender upon
request all customary costs and expenses of the Issuing
Lender therefore.
9. New Section 3.6(c) of the Credit Agreement (Commissions and Other
Charges). As of the Second Amendment Effective Date, a new Section 3.6(c) is
hereby added to the Credit Agreement in its entirety as follows:
(c) All fees, commissions, costs, expenses or other
charges paid to an Issuing Lender by Borrowers under
this Section 3.6 shall be non-refundable.
10. Amendment to Section 3.9 of the Credit Agreement (Obligations
Absolute). As of the Second Amendment Effective Date, the last sentence of
Section 3.9 is hereby deleted in its entirety and replaced with the following
two sentences:
The parties hereto expressly agree that, in the absence
of gross negligence or willful misconduct on the part of an
Issuing Bank (as finally determined by a court of competent
jurisdiction), the Issuing Bank shall be deemed to have
exercised care in each determination of whether drafts or
other documents presented under a Letter of Credit comply
with the terms thereof. In furtherance of the foregoing, and
without limiting the generality thereof, the parties agree
that, with respect to documents presented which appear on
their face to be in substantial compliance with the terms of
a Letter of Credit, the Issuing Bank may, in its sole
discretion, either accept and make payment upon such
documents without responsibility for further investigation,
regardless of any notice or information to the contrary, or
refuse to accept and make payment upon such documents if such
documents are not in compliance with the terms of such Letter
of Credit.
11. Amendment to Section 3.12 (Continuing Letter of Credit
Agreement). As of the Second Amendment Effective Date, Section 3.12 of the
Credit Agreement is hereby amended and restated in its entirety as follows:
Section 3.12. Letter of Credit Documents.
(a) Wachovia. Letters of Credit and amendments
thereto issued by Wachovia, as Issuing Lender, shall be
requested,
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processed and issued, and draws thereon shall be negotiated,
processed and paid, in accordance with and subject to the
terms and procedures of: (i) the Continuing Letter of Credit
Agreement and/or (ii) the Import Express Electronic Letter
of Credit Service Agreement between Wachovia and
Anthropologie, Inc. dated July 5, 2000 and the Import
Express Electronic Letter of Credit Service Agreement
between Wachovia and Urban dated July 5, 2000.
(b) JPMC. Letters of Credit and amendments thereto
issued by JPMC, as Issuing Lender, are subject to the terms
and procedures of: (i) the Continuing Agreement for
Commercial and Standby Letters of Credit by and between JPMC
and Borrowers dated October 30, 2002 and (ii) the Agreement
for Trade-Related Electronic Services by and between JPMC
and Borrowers dated October 30, 2002.
12. New Section 3.13 (Letter of Credit Reports). As of the Second
Amendment Effective Date, a new Section 3.13 is hereby added to the Credit
Agreement as follows:
3.13 Letter of Credit Reports. Each Issuing Lender shall
deliver to the Administrative Agent: (i) within five (5)
Business Days after the last day of each calendar month, a
report of the actual daily outstandings for each day in the
previous month for all Letters of Credit issued by such
Issuing Lender; and (ii) immediately upon the request of
Administrative Agent, a daily report of all actual daily
outstanding Letters of Credit issued by such Issuing Lender
for the period requested by the Administrative Agent.
Additionally, the Administrative Agent shall promptly report
to each Lender, within fifteen (15) Business Days after the
end of each month, the average daily outstandings for each
day in the previous month for all Letters of Credit.
13. Amendment to Section 13.6 (Binding Arbitration; Waiver of Jury
Trial; Preservation of Remedies). As of the Second Amendment Effective Date,
Section 13.6 of the Credit Agreement is hereby amended and restated in its
entirety as follows:
Section 13.6. Waiver of Jury Trial; Preservation of Remedies.
(a) [Intentionally Omitted.]
(b) Jury Trial. THE ADMINISTRATIVE AGENT, EACH LENDER AND
EACH BORROWER HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY
TRIAL WITH RESPECT TO ANY ACTION, CLAIM OR OTHER PROCEEDING
ARISING OUT OF ANY DISPUTE, CLAIM OR CONTROVERSY IN
CONNECTION WITH THIS
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AGREEMENT, THE NOTES, THE LETTERS OF CREDIT OR THE OTHER
LOAN DOCUMENTS, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR
THEREUNDER, OR THE PERFORMANCE OF SUCH RIGHTS AND
OBLIGATIONS.
(c) Preservation of Certain Remedies. The parties
hereto and the other Loan Documents preserve, without
diminution, certain remedies that such Persons may employ or
exercise freely, either alone, in conjunction with or during
a dispute, claim or controversy arising out of this
Agreement, the Notes, the Letters of Credit or any other
Loan Document. Each such Person shall have and hereby
reserves the right to proceed in any court of proper
jurisdiction or by self help to exercise or prosecute the
following remedies: (i) all rights to foreclose against any
real or personal property or other security by exercising a
power of sale granted in the Loan Documents or under
applicable law or by judicial foreclosure and sale; (ii) all
rights of self help including without limitation peaceful
occupation of property and collection of rents, set off, and
peaceful possession of property; (iii) obtaining provisional
or ancillary remedies including without limitation
injunctive relief, sequestration, garnishment, attachment,
appointment of receiver and in filing an involuntary
bankruptcy proceeding; and (iv) when applicable, a judgment
by confession of judgment.
14. Representations and Warranties. Borrowers hereby represent and
warrant to Lenders as follows:
a. Representations. As of the Second Amendment Effective Date
the Borrowers represent and warrant as follows: (i) the representations and
warranties set forth in Article VI of the Credit Agreement are true and correct
in all material respects, except for any representation or warranty made as of
an earlier date, which representation and warranty shall remain true and correct
as of such earlier date; (ii) there is no Event of Default or Default under the
Credit Agreement, as amended hereby, which has not been cured or waived; and
(iii) no Borrower is aware of any Material Adverse Effect.
b. Power and Authority. Each Borrower has the power and
authority under the laws of its jurisdiction of formation and under its
respective formation documents to enter into and perform this Second Amendment
and the other documents and agreements required hereunder (collectively, the
"Amendment Documents"); all necessary actions (corporate or otherwise) for the
execution and performance by each Borrower of the Amendment Documents have been
taken; and each of the Amendment Documents and the Credit Agreement, as amended,
constitute the valid and binding obligations of Borrowers, enforceable in
accordance with its respective terms.
c. No Violations of Law or Agreements. The execution and
performance of the Amendment Documents by Borrowers will not: (i) violate any
provisions of
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any law or regulation, federal, state, local, or foreign, or any formation
document of any Borrower or (ii) result in any breach or violation of, or
constitute a default or require the obtaining of any consent under, any material
agreement or instrument by which any Borrower or its property may be bound.
15. Conditions to Effectiveness of Amendment. This Second Amendment
shall be effective upon the date of Administrative Agent's receipt of the
following documents, each in form and substance reasonably satisfactory to
Administrative Agent:
a. Second Amendment. This Second Amendment duly executed by
Borrowers, Lenders, Administrative Agent and JPMC.
b. Assignment and Assumption Agreement. A duly executed
Assignment and Assumption Agreement under which JPMC is assigned no less than
$10,000,000 of the Commitment.
c. Promissory Notes. Amended and restated Notes duly executed
by Borrowers in favor of each Lender; in form and substance acceptable to
Administrative Agent, which Notes amend, restate, replace and supersede (but are
not a novation of) the Note by Borrowers in favor of Wachovia in the original
principal amount of $30,000,000 dated September 11, 2002.
d. Letter Agreement for Letter of Credit Fees. A duly executed
letter agreement by and between each Issuing Lender and Borrowers with respect
to additional Letter of Credit fees due under Section 3.6(b) of the Credit
Agreement.
e. Other Documents. Such additional documents as Administrative
Agent may reasonably request.
16. Affirmations. Borrowers hereby: (i) affirm all the provisions of
the Credit Agreement, as amended by this Second Amendment, and (ii) agree that
the terms and conditions of the Credit Agreement shall continue in full force
and effect as amended hereby.
17. Guarantors. The Guarantors, as evidenced by their signature
below, hereby: (i) affirm all the provisions of the Credit Agreement, as amended
by this Second Amendment, (ii) agree that the terms and conditions of the Credit
Agreement shall continue in full force and effect as amended hereby and (iii)
agree that the terms and conditions of the Guaranty Agreement, as amended and
supplemented, shall continue in full force and effect.
18. Miscellaneous.
a. Borrowers agree to pay or reimburse Administrative Agent for
all reasonable fees and expenses (including without limitation reasonable fees
and expenses of counsel) incurred by Administrative Agent in connection with the
preparation, execution and delivery of this Second Amendment.
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b. This Second Amendment shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania, without regard to
conflicts of law or choice of law principles.
c. This Second Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and shall be binding
upon all parties, their successors and assigns, and all of which taken together
shall constitute one and the same agreement.
d. Except as expressly set forth herein, the execution, delivery
and performance of this Second Amendment shall not operate as a waiver of any
right, power or remedy of Administrative Agent, any Issuing Lender, or Lenders
under the Credit Agreement and the agreements and documents executed in
connection therewith or constitute a waiver of any provision thereof.
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IN WITNESS WHEREOF, the undersigned have executed this Second
Amendment the day and year first above written.
Borrowers:
URBAN OUTFITTERS, INC.,
as a Borrower
By: /S/ Xxxxxxx X. Xxxxx
--------------------
Name: Xxxxxxx X. Xxxxx
Title: President
UO FENWICK, INC.,
as a Borrower
By: /S/ Xxxxxxx X. Xxxxxxx
----------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
INTER-URBAN, INC.,
as a Borrower
By: /S/ Xxxxxxx X. Xxxxxxx
----------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
URBAN OUTFITTERS (DELAWARE), INC.,
as a Borrower
By: /S/ Xxxxxxx X. Xxxx
-------------------
Name: Xxxxxxx X. Xxxx
Title: Treasurer
ANTHROPOLOGIE (DELAWARE), INC.,
as a Borrower
By: /S/ Xxxxxxx X. Xxxx
-------------------
Name: Xxxxxxx X. Xxxx
Title: Treasurer
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URBAN OUTFITTERS UK LIMITED,
as a Borrower
By: /S/ Xxxxxxx X. Xxxxx
--------------------
Name: Xxxxxxx X. Xxxxx
Title: Director
By: /S/ Xxxxxxx X. Xxxxxxx
----------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Director
URBAN OUTFITTERS IRELAND LIMITED,
as a Borrower
By: /S/ Xxxxxxx X. Xxxxxxx
----------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Director
By: /S/ Xxxx X. Xxxxx
-----------------
Name: Xxxx X. Xxxxx
Title: Director
Lenders:
WACHOVIA BANK, NATIONAL
ASSOCIATION (f/k/a First Union National
Bank), as a Lender, Issuing Lender and
as Administrative Agent
By: /S/ Xxxxx X. Xxxxxx
-------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
JPMORGAN CHASE BANK, as a Lender and
Issuing Lender
By: /S/ Xxxxx X. Xxxxxx
-------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
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Guarantors:
ANTHROPOLOGIE, INC.,
as a Guarantor
By: /S/ Xxxxxxx X. Xxxxx
-----------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
URBAN OUTFITTERS WHOLESALE, INC.,
as a Guarantor
By: /S/ Xxxxxxx X. Xxxx
------------------------
Name: Xxxxxxx X. Xxxx
Title: Treasurer
URBAN OUTFITTERS DIRECT, LLC,
as a Guarantor
By: /S/ Xxxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Chief Financial Officer
ANTHROPOLOGIE DIRECT, LLC,
as a Guarantor
By: /S/ Xxxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Chief Financial Officer
U.O.D., INC.,
as a Guarantor
By: /S/ Xxxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxx
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Title: President
U.O.D. SECONDARY, INC.
as a Guarantor
By: /S/ Xxxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
UOGC, INC.,
as a Guarantor
By: /S/ Xxxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Chief Financial Officer
URBAN OUTFITTERS WEST LLC
By: /S/ Xxxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Chief Financial Officer
FREE PEOPLE LLC
By: /S/ Xxxxxxx X. Xxxx
--------------------------
Name: Xxxxxxx X. Xxxx
Title: Treasurer
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