Confirmation, Ratification and Amendment of Ancillary Loan Documents, made as of April 29, 2021, among Abercrombie & Fitch Co., for itself and as Lead Borrower; the other B

This Confirmation, Ratification and Amendment of Ancillary Loan Documents (this “Agreement”) is made as of April 29, 2021, by and among:

ABERCROMBIE & FITCH MANAGEMENT CO., a Delaware corporation, for itself and as Lead Borrower (in such capacity, the “Lead Borrower”) for the other Borrowers from time to time party hereto; the other Borrower’s party hereto;

the Persons named on Schedule 1.01 hereto (collectively, with each other Person that from time to time becomes a “Guarantor” hereunder, the “Guarantors” and together with the Borrowers, collectively, the “Loan Parties”); and

WELLS FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent and Collateral Agent (the “Agent”);

in consideration of the mutual covenants herein contained and benefits to be derived herefrom.

WHEREAS, the Loan Parties, the Agent and the Lenders from time to time party thereto have previously entered into that certain Credit Agreement dated as of August 7, 2014 (as amended, restated, supplemented or otherwise modified from time to time prior to the date hereof, the “Existing Credit Agreement”);

WHEREAS, in connection with the Existing Credit Agreement, the Loan Parties executed and delivered to the Agent, for the benefit of certain of the Credit Parties, among other documents, instruments and agreements, those documents, instruments and agreements set forth on Schedule 2.01 hereto (as amended, restated, supplemented or otherwise modified and in effect as of the date hereof, the “Ancillary Loan Documents”);

WHEREAS, the Agent, the Lenders, and the Loan Parties have agreed to amend and restate the Existing Credit Agreement in its entirety pursuant to a certain Amended and Restated Credit Agreement of even date herewith (as amended, amended and restated, modified, supplemented or restated and in effect from time to time, the “Restated Credit Agreement”);

WHEREAS, in connection with the execution and delivery of the Restated Credit Agreement, among other things, the Loan Parties and the Agent desire to enter into this Agreement to set forth their respective understanding with respect to the continued effectiveness of the Ancillary Loan Documents.

NOW, THEREFORE, it is hereby agreed by and among the Loan Parties and the Agent, for its own benefit and the benefit of the other Credit Parties, as follows:

1.    Definitions. Unless otherwise defined herein, all capitalized terms used herein shall have the meaning set forth in the Restated Credit Agreement.

2.    Amendments to Ancillary Loan Documents.

(a)    Any and all references in the Ancillary Loan Documents to the “Credit Agreement” or “Loan Agreement” shall hereafter be deemed to refer to the Restated Credit Agreement.

(b)    Any and all references to “Term Facility”, “Term Agent”, “Term Priority Collateral” or “Term Documents” contained in the Security Agreement shall hereafter be deemed to refer to the “Notes Facility”, “Notes Collateral Agent”, “Notes Priority Collateral” and “Notes Documents” respectively.

(c)    The definition of “Excluded Property” set forth in the Security Agreement is hereby amended to insert the following text immediately following the reference to “(v) pledges and security interests prohibited by applicable Law, rule or regulation”:

“(including security interests in intent-to-use Trademark applications to the extent prohibited by the Lanham Act)”

(d)    Schedules I, III, and IV to the Security Agreement are hereby restated and replaced in their entirety with the Schedules attached as Schedule 3.01 hereto.

(e)    Schedule 1 (Assets in Possession of Third Parties) to the Information Certificate (setting forth the information required to be disclosed under Section I.C. (Warehousemen, Bailees, etc.) thereof) is hereby restated and replaced in its entirety with Schedule 4.01 attached hereto.

3.    Confirmation and Ratification of Ancillary Loan Documents.

(a)    Each of the Loan Parties hereby ratifies and confirms all of the terms and conditions of the Ancillary Loan Documents to which it is a party, and each of the Loan Parties acknowledges and agrees that each of the Ancillary Loan Documents (including any schedules and exhibits thereto) remains in full force and effect.

(b)    Each of the Loan Parties hereby ratifies and confirms each of the representations and warranties contained in the Ancillary Loan Documents to which it is a party are true and correct in all material respects as of the date hereof, except (i) to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date, and (ii) in the case of any representation and warranty qualified by materiality, they are true and correct in all respects.

(c)    Each of the Loan Parties hereby ratifies and confirms the information contained in the Ancillary Loan Documents (including any schedules and exhibits thereto) to which it is a party, except as amended, supplemented or otherwise modified pursuant to the revised/updated schedules attached hereto as Schedule 3.01.

(d)    Each of the Guarantors hereby acknowledges, confirms and agrees that the Guaranteed Obligations of the Guarantors under, and as defined in, the Facility Guaranty include, without limitation, all Obligations of the Loan Parties at any time and from time to time outstanding under the Restated Credit Agreement.

(e)    Without in any manner limiting the foregoing clauses 3(a)-(d), each of the Loan Parties hereby acknowledges, confirms and agrees that the Ancillary Loan Documents, and any and all Collateral previously pledged to the Agent or the Collateral Agent, as applicable, for the benefit of the Credit Parties, pursuant thereto, shall continue to secure all Secured Obligations (as defined in the Security Agreement) of the Loan Parties at any time and from time to time outstanding, as such Secured Obligations have been, and may hereafter be, amended, restated, supplemented, increased or otherwise modified from time to time.

4.    Miscellaneous.

(a)    This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement and the other Loan Documents constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. Delivery of an executed counterpart of a signature page of this Agreement by telecopy, pdf or other electronic transmission shall be as effective as delivery of a manually executed counterpart of this Agreement.

(b)    If any provision of this Agreement is held to be illegal, invalid or unenforceable, (i) the legality, validity and enforceability of the remaining provisions of this Agreement shall not be affected or impaired thereby and (ii) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

(c)    The Loan Parties, at the Loan Parties’ expense in accordance with Section 10.04 of the Restated Credit Agreement, shall execute such additional documents and undertake such additional actions as the Agent may reasonably request in order to more fully confirm, vest and perfect the Agent’s security interests and liens in the Collateral that are the subject of the Ancillary Loan Documents.

(d)    THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

(e)    EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS, SUBJECT TO THE LAST SENTENCE HEREOF, FOR ITSELF AND ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING

ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT, SUBJECT TO THE LAST SENTENCE HEREOF, ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING SHALL BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH PARTY HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTWITHSTANDING THE FOREGOING, NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT ANY CREDIT PARTY MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THE EXERCISE OF THE CREDIT PARTIES OF THEIR RIGHTS AND REMEDIES WITH RESPECT TO THE COLLATERAL OR ANY OTHER LOAN DOCUMENT AGAINST ANY LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.

(f)    EACH LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (E) OF THIS SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.

(g)    EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON 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 AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS PARAGRAPH.

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the date first above written.

ABERCROMBIE & FITCH CO.

A & F TRADEMARK, INC.

ABERCROMBIE & FITCH HOLDING CORPORATION

HOLLISTER CO.

J.M.H. TRADEMARK, INC.

HOLLISTER CO. CALIFORNIA, LLC

AFH PUERTO RICO LLC

A&F CANADA HOLDING CO.

1.    Guaranty dated as of August 7, 2014 by the Guarantors in favor of the Agent (the “Facility Guaranty”).

2.    Security Agreement dated as of August 7, 2014 by and among the Lead Borrower, the other Grantors party thereto, and the Agent (as amended pursuant to the Confirmation, Ratification and Amendment of Ancillary Loan Documents, dated October 19, 2017, the “Security Agreement”).

3.    Grant of Security Interest in Untied States Copyrights dated as of August 7, 2014 by and among Abercrombie & Fitch Trading Co., A & F Trademark, Inc., and the Agent.

4.    Grant of Security Interest in Untied States Patents dated as of August 7, 2014 by and among Abercrombie & Fitch Trading Co., A & F Trademark, Inc., and the Agent.

5.    Grant of Security Interest in Untied States Trademarks dated as of August 7, 2014 by and among Abercrombie & Fitch Trading Co., and the Agent.

6.    Deposit Account Control Agreement (Springing Agreement) dated as of November 7, 2014 by and among Abercrombie & Fitch Stores, Inc., PNC Bank, National Association, as depository bank, the Agent, as First Lien Lender, and Wells Fargo Bank, National Association, as Second Lien Lender.

7.    Deposit Account Control Agreement (Access Restricted After Notice - Two Secured Parties) dated as of November 10, 2014 by and among Abercrombie & Fitch Stores, Inc., Wells Fargo Bank, National Association, as depository bank, the Agent, as First Lien Agent, and Wells Fargo Bank, National Association, as Second Lien Agent.

8.    Blocked Account Control Agreement dated as of December 18, 2014 by and among Abercrombie & Fitch Stores, Inc., U.S. Bank National Association as depository bank, the Agent, as First Lien Agent, and Wells Fargo Bank, National Association, as Second Lien Agent.

9.    Deposit Account Control Agreement dated as of January 14, 2015, by and among Abercrombie & Fitch Stores, Inc., Hollister Co., The Huntington National Bank, as depository bank, the Agent, as First Lien Creditor, and Wells Fargo Bank, National Association, as Second Lien Creditor, as amended by Amendment No. 1 thereto dated January 26, 2017.

10.    Blocked Account Control Agreement (“Shifting Control”), dated as of January 27, 2015, by and among the Lead Borrower, Abercrombie & Fitch Stores, Inc., Abercrombie & Fitch Co., Abercrombie & Fitch Trading Co., Abercrombie & Fitch Procurement LLC, A & F Trademark, Inc., JPMorgan Chase Bank, N.A., as depository bank, the Agent, as First Lien Agent, and Wells Fargo Bank, National Association, as Second Lien Agent, as amended by Amendment No. 1 thereto, dated September 11, 2015, as further amended by Amendment No. 2 thereto, dated May 20, 2016, as further amendment by Amendment No. 3 thereto, dated December 20, 2017, as further amendment by amendment No. 4 thereto, dated May 25, 2018 and as further amended by Amendment No. 5 thereto, dated February 12, 2020.

11.    Securities Deposit Account Control Agreement dated as of August 10, 2015 by and among the Lead Borrower, MUFG Union Bank, N.A., as depository bank, the Agent, as First Lien Agent, and Wells Fargo Bank, National Association, as Second Lien Agent.

12.    Deposit Account Control Agreement (First Lien) dated as of January 6, 2016 by and among the Lead Borrower, HSBC Bank US, N.A., as depository bank, and the Agent.

13.    Deposit Account Control Agreement (Springing Agreement) dated as of September 20, 2016 by and among the Lead Borrower, PNC Bank, National Association, as depository bank, the Agent, as First Lien Lender, and Wells Fargo Bank, National Association, as Second Lien Lender.

14.    Bailment Agreement dated as of January 23, 2015 by and among, Abercrombie & Fitch Trading Co., Maersk Agency U.S.A., Inc. on behalf of A.P. Møller - Mærsk A/S trading as Maersk Line, the Agent, as ABL Agent, and Wells Fargo Bank, National Association, as Term Agent.

15.    Inventory Agreement dated as of March 12, 2015 by and among, Abercrombie & Fitch Trading Co., Expeditors International of Washington, Inc., the Agent, as ABL Agent, and Wells Fargo Bank, National Association, as Term Agent.

16.    Carrier Agency Agreement by and among, Abercrombie & Fitch Trading Co., US Lines, LLC, as agent for ANL Singapore, the Agent, as ABL Agent, and Wells Fargo Bank, National Association, as Term Agent.

17.    Ocean Carrier Agency Agreement dated as of December 18, 2017, by and among, the Lead Borrower, Orient Overseas Container Line Limited, as the Freight Forwarder, the Agent, as ABL Agent, and Wells Fargo Bank, National Association, as Term Agent.

18.    Freight Forwarder Agency Agreement dated as of December 4, 2017, by and among, the Lead Borrower, Schenker, Inc., as the Freight Forwarder, the Agent as ABL Agent, and Wells Fargo Bank, National Association, as Term Agent.

19.    Freight Forwarder Agency Agreement dated as of December 13, 2017, by and among, the Lead Borrower, Toll Global Forwarding (Hong Kong) Limited, as the Freight Forwarder, the Agent, as ABL Agent, and Wells Fargo Bank, National Association, as Term Agent.

20.    Freight Forwarder Agency Agreement dated as of February 2, 2018, by and among, the Lead Borrower, Hellmann Worldwide Logistics, as the Freight Forwarder, the Agent, as ABL Agent, and Wells Fargo Bank, National Association, as Term Agent.

21.    Blocked Account Control Agreement dated as of January 29, 2018, by and among, Abercrombie & Fitch Stores, Inc., as the Company, the Agent, as the First Lien Agent, Wells Fargo Bank, National Association, as Second Lien Agent and U.S. Bank, National Association, as the Depositary Bank.

22.    Deposit Account (With Activation, Multi-Lender) Control Agreement dated as of February 27, 2018, by and among, the Lead Borrower, J.M. Hollister, LLC, AFH Puerto Rico LLC, the Agent, as the First Lien Agent, Wells Fargo Bank, National Association, as the Second Lien Agent, and Bank of America, National Association, as the Bank, as amended by Amendment No. 1 thereto, dated October 9, 2019.

23.    Freight Forwarder Agency Agreement dated as of September 8, 2017, by and among, the Lead Borrower, Expolanka USA, LLC, as the Freight Forwarder, the Agent, as ABL Agent, and Wells Fargo Bank, National Association, as Term Agent.

24.    Notification and Control Agreement (Trust, Custody or Brokerage Accounts) dated as of April 23, 2018, by and among, the Lead Borrower, PNC Bank, National Association, as Custodian, the Agent, as the First Lien Secured Party, and Wells Fargo Bank, National Association, as the Second Lien Secured Party.

25.    Freight Forwarder Agency Agreement dated as of July 16, 2018, by and among, the Lead Borrower, JAS Forwarding USA Inc., as the Freight Forwarder, the Agent, as ABL Agent, and Wells Fargo Bank, National Association, as Term Agent.

26.    Account Control Agreement dated as of September 24 2018, by and among, the Lead Borrower, the Agent, as First Lien Secured Party, Wells Fargo Bank, National Association, as Second Lien Secured Party, and Lloyds Bank Corporate Markets PLC, as the Depository Institution.

27.    Freight Forwarder Agency Agreement dated as of October 8, 2019, by and among the Lead Borrower, Century Distribution Systems, Inc., as the Freight Forwarder, the Agent, as ABL Agent, and Wells Fargo Bank, National Association, as Term Agent.

28.    Deposit Account Control Agreement (Access Restricted After Notice – Two Secured Parties), dated as of February 19, 2019, by an among the Lead Borrower, the Agent, as First Lien Agent, Wells Fargo Bank, National Association, as Second Lien Agent, and Wells Fargo Bank, National Association, as Bank.

29.    Deposit Account Control Agreement (Springing Control – Single Secured Creditor), dated as of July 15, 2020, by and among the Lead Borrower, the Agent and Citizens Bank, N.A.

30.    Open-End Second Lien Mortgage, Security Agreement, Fixture Filing, Financing Statement and Assignment of Rents and Leases, entered into as of July 2, 2020 by the Lead Borrower in favor of the Agent.

31.    Notes by the Borrower in favor of the Lenders executed as of the date hereof.

32.    Credit Card Notifications executed and delivered by the Loan Parties as of the date hereof.

(a)    Foreign Subsidiaries. As of the Closing Date, the following instruments, or loan agreements in connection with, are paid or payable to the Loan Parties from foreign subsidiaries:

(b)    Domestic Subsidiaries and Loan Parties. As of the Closing Date, the following instruments, or loan agreements in connection with, are paid or payable to the Loan Parties from domestic subsidiaries or other Loan Parties: