EXHIBIT 4
CONFORMED COPY
SECOND AMENDMENT, dated as of September 15, 2004 (this
"Amendment"), to the Credit Agreement, dated as of November 14, 2002
(as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among ABERCROMBIE & FITCH MANAGEMENT CO., a
Delaware corporation (the "Borrower"), ABERCROMBIE & FITCH CO., a
Delaware corporation (the "Parent"), the several banks and other
financial institutions and entities from time to time parties thereto
(the "Lenders"), and NATIONAL CITY BANK, as administrative agent (the
"Administrative Agent").
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 Required Lenders are willing to agree to such modifications as provided for
in this Amendment.
NOW, THEREFORE, the parties hereto hereby agree as follows:
SECTION 1. Defined Terms. Capitalized terms used and not defined herein
shall have the meanings given to them in the Credit Agreement, as amended
hereby.
SECTION 2. Amendment to the Credit Agreement. Section 6.07 of the
Credit Agreement is hereby amended by revising clause (e) thereof to read as
follows:
"(e) so long as no Default or Event of Default shall exist,
the Parent and the Borrower may (i) repurchase fractional shares of
common stock of the Parent and (ii) repurchase shares of common stock
of the Parent for cash in any amount, so long as no Loans have been
made pursuant to this Agreement or, if Loans have at any time been
made, repurchase shares of common stock of the Parent (x) in any fiscal
year, in an aggregate amount not in excess of 40% of Consolidated Net
Income for the immediately preceding fiscal year less the aggregate
amount of any repurchases made in such fiscal year pursuant to
subclause (y) of this clause (e)(ii), plus (y) an aggregate cumulative
amount not in excess of $250,000,000 less the aggregate cumulative
amount of any repurchases made pursuant to subclause (x) of this clause
(e)(ii) and any repurchases made after September 15, 2004 and prior to
the making of Loans pursuant to this Agreement (it being understood
that all purchases of shares of common stock on the open market shall
be subject to the limitations set out in this clause (e) and are not
separately permitted by clause (d) above);"
SECTION 3. 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.
SECTION 4. Representations and Warranties. To induce the other parties
hereto to enter into this Amendment, the Borrower represents to each of the
Lenders and the Administrative Agent that:
(i) after giving effect to this Amendment, the representations and
warranties of the Borrower set forth in the Credit Agreement are true and
correct in all material respects on the date hereof with the same effect as if
made on the Effective Date (as defined below), except for representations and
warranties that expressly relate to an earlier date, which representations and
warranties were true and correct in all material respects as of such earlier
date;
(ii) after giving effect to this Amendment, no Default or Event of
Default has occurred and is continuing under the Credit Agreement; and
(iii) this Amendment has been duly executed and delivered by each of
the Parent and the Borrower and constitutes a legal, valid and binding
obligation of each of the Parent and the Borrower, enforceable in accordance
with its terms.
SECTION 5. Effectiveness. This Amendment shall become effective as of
the date (the "Effective Date") upon which the Administrative Agent shall have
received counterparts of this Amendment that, when taken together, bear the
signatures of the Parent, the Borrower and the Required Lenders under the Credit
Agreement.
SECTION 6. Effect of the Amendment. Except as expressly set forth
herein, this Amendment shall not by implication or otherwise limit, impair,
constitute a waiver of, amend, or otherwise affect the rights and remedies of
the Lenders or the Administrative Agent under the Credit Agreement and shall not
alter, modify, amend or in any way affect any of the terms, conditions,
obligations, covenants or agreements contained in the Credit Agreement, all of
which are ratified and affirmed in all respects and shall continue in full force
and effect. Nothing herein shall be deemed to entitle the Borrower to a consent
to, or a waiver, amendment, modification or other change of, any of the terms,
conditions, obligations, covenants or agreements contained in the Credit
Agreement in similar or different circumstances. This Amendment shall apply and
be effective with respect to the matters expressly referred to herein. After the
Effective Date, any reference to the Credit Agreement shall mean such Credit
Agreement, as modified hereby.
SECTION 7. APPLICABLE LAW. THIS AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND
BE GOVERNED BY THE LAWS OF THE STATE OF OHIO, TO THE FULLEST EXTENT PERMITTED BY
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LAW, THE BORROWER HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY CLAIM TO
ASSERT THAT THE LAW OF ANY JURISDICTION OTHER THAN THE STATE OF OHIO GOVERNS
THIS AMENDMENT.
SECTION 8. Costs and Expenses. The Borrower agrees to reimburse the
Administrative Agent for its reasonable out-of-pocket expenses in connection
with this Amendment, including the reasonable fees, charges and disbursements of
Cravath, Swaine & Xxxxx LLP, counsel for the Administrative Agent.
SECTION 9. Headings. The headings of this Amendment are for purposes of
reference only and shall not limit or otherwise affect the meaning hereof.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective authorized officers as of the day and year
first written above.
ABERCROMBIE & FITCH MANAGEMENT CO.,
by: /s/ Xxxxx Xxxxx
---------------------------------
Name: Xxxxx Xxxxx
Title: SVP - CFO
ABERCROMBIE & FITCH CO.,
by: /s/ Xxxxx Xxxxx
---------------------------------
Name: Xxxxx Xxxxx
Title: SVP - CFO
NATIONAL CITY BANK, individually and
as Administrative Agent,
by: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
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SIGNATURE PAGE TO SECOND AMENDMENT DATED AS
OF SEPTEMBER 15, 2004 TO THE ABERCROMBIE &
FITCH CREDIT AGREEMENT DATED AS OF NOVEMBER
14, 0000
XXXX XX XXXXXXX, N.A.
By: /s/ Xxx Honey
----------------------------------
Name: Xxx Honey
Title: Vice President
CITIZENS BANK OF PENNSYLVANIA
By: /s/ Xxxx X. Xxxxxx Xx.
----------------------------------
Name: Xxxx X. Xxxxxx Xx.
Title: Vice President
FIFTH THIRD BANK (CENTRAL OHIO)
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: AVP
JPMORGAN CHASE BANK
By: /s/ Xxxxx Xxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
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LaSalle Bank National Association
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Assistant Vice President
PNC Bank, National Association
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
The Bank of New York
By: /s/ Xxxxxxxx X. X. Xxxxxxx
----------------------------------
Name: Xxxxxxxx X. X. Xxxxxxx
Title: Vice President
U.S. Bank National Association
By: /s/ R. H. Friend
----------------------------------
Name: R. H. Friend
Title: Vice President
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