Services Agreement - Abercrombie & Fitch Co. and The Limited Inc.
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EXECUTION COPY
AMENDED AND RESTATED SERVICES AGREEMENT
DATED AS OF MAY 19, 1998
BETWEEN
ABERCROMBIE & FITCH CO.
AND
THE LIMITED, INC.
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TABLE OF CONTENTS
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PAGE
ARTICLE 1
DEFINITIONS
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SECTION 1.01. Definitions......................................................................2
SECTION 1.02. Internal References..............................................................4
ARTICLE 2
PURCHASE AND SALE OF SERVICES
SECTION 2.01. Purchase and Sale of Services....................................................4
SECTION 2.02. Additional Services..............................................................4
ARTICLE 3
SERVICE COSTS; OTHER CHARGES
SECTION 3.01. Service Costs Generally..........................................................5
SECTION 3.02. Customary Billing................................................................5
SECTION 3.03. Pass-Through Billing.............................................................5
SECTION 3.04. Certain Benefits Matters.........................................................6
SECTION 3.05. Invoicing and Settlement of Costs................................................6
ARTICLE 4
THE SERVICES
SECTION 4.01. General Standard of Service......................................................7
SECTION 4.02. Delegation.......................................................................7
SECTION 4.03. Limitation of Liability..........................................................8
SECTION 4.04. Indemnification of The Limited by Abercrombie & Fitch............................9
SECTION 4.05. Indemnification of Abercrombie & Fitch by The Limited............................9
SECTION 4.06. Further Indemnification.........................................................10
SECTION 4.07. Notice of Certain Matters.......................................................10
ARTICLE 5
TERM AND TERMINATION
SECTION 5.01. Term............................................................................11
SECTION 5.02. Termination.....................................................................11
SECTION 5.03. Effect of Termination...........................................................11
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ARTICLE 6
ADDITIONAL AGREEMENTS
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SECTION 6.01. Confidential Information........................................................12
SECTION 6.02. Associate Matters...............................................................13
SECTION 6.03. Financial Support Arrangements..................................................13
SECTION 6.04. Insurance Matters...............................................................14
ARTICLE 7
MISCELLANEOUS
SECTION 7.01. Prior Agreements................................................................15
SECTION 7.02. Future Litigation and Other Proceedings.........................................15
SECTION 7.03. No Agency.......................................................................16
SECTION 7.04. Subcontractors..................................................................16
SECTION 7.05. Force Majeure...................................................................16
SECTION 7.06. Entire Agreement................................................................17
SECTION 7.07. Information.....................................................................17
SECTION 7.08. Notices.........................................................................17
SECTION 7.09. Governing Law...................................................................18
SECTION 7.10. Dispute Resolution..............................................................18
SECTION 7.11. WAIVER OF JURY TRIAL............................................................18
SECTION 7.12. Severability....................................................................19
SECTION 7.13. Amendment.......................................................................19
SECTION 7.14. Counterparts....................................................................19
SECTION 7.15. Services to The Limited.........................................................19
SECTION 7.16. Termination of Old Services Agreement...........................................19
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AMENDED AND RESTATED SERVICES AGREEMENT
This Amended and Restated Services Agreement (this "AGREEMENT") is
entered into as of May 19, 1998 by and between Abercrombie & Fitch Co., a
Delaware corporation ("ABERCROMBIE & FITCH"), and The Limited, Inc. a
Delaware corporation ("THE LIMITED").
RECITALS
WHEREAS, The Limited owned approximately 84% of the outstanding common
stock of Abercrombie & Fitch prior to the consummation of the Exchange Offer (as
defined below);
WHEREAS, The Limited will no longer own any of the outstanding common
stock of Abercrombie & Fitch after the consummation of the Exchange Offer and
Spin-Off (as defined below), if any;
WHEREAS, The Limited has heretofore directly or indirectly provided
certain administrative, financial, management and other services to the
Abercrombie & Fitch Entities (as defined below) and Abercrombie & Fitch has
heretofore retained The Limited as an independent contractor to provide,
directly or indirectly, certain of those services to the Abercrombie & Fitch
Entities pursuant to the Services Agreement between Abercrombie & Fitch and The
Limited dated as of September 27, 1996 (the "OLD SERVICES AGREEMENT"); and
WHEREAS, Abercrombie & Fitch and The Limited desire to amend and
restate the Old Services Agreement as set forth herein.
AGREEMENTS
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, The Limited and Abercrombie &
Fitch, for themselves, their successors and assigns, hereby agree as follows:
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ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions. (a) As used in this Agreement, the following
terms will have the following meanings, applicable both to the singular and the
plural forms of the terms described:
"ABERCROMBIE & FITCH ENTITIES" means Abercrombie & Fitch and its
Subsidiaries, and "Abercrombie & Fitch Entity" shall mean any of the Abercrombie
& Fitch Entities.
"AGREEMENT" has the meaning ascribed thereto in the preamble hereto, as
such agreement may be amended and supplemented from time to time in accordance
with its terms.
"BUSINESS DAY" means a day other than a Saturday, Sunday or other day
on which commercial banks in New York, New York or Columbus, Ohio are authorized
or required by law to close.
"CHANGE OF CONTROL" means (i) the direct or indirect acquisition (by
merger, consolidation, business combination or otherwise) by any Person or group
or Persons of beneficial ownership (as defined in Rule 13d-1 and Rule 13d-5
under the Securities Exchange Act of 1934) of 50% or more of the Total Voting
Power of Abercrombie & Fitch, (ii) any merger, consolidation or other business
combination of Abercrombie & Fitch or a Subsidiary of Abercrombie & Fitch with
any Person after giving effect to which (x) the shareholders of Abercrombie &
Fitch immediately prior to such transaction do not own at least 50% of the Total
Voting Power of the ultimate parent entity of the parties to such transaction or
(y) individuals who were directors of Abercrombie & Fitch immediately prior to
such transaction (or their designees) do not constitute a majority of the board
of directors of such ultimate parent entity and (iii) the direct or indirect
acquisition by any Person or group of Persons of all or substantially all of the
assets of Abercrombie & Fitch.
"CLASS A COMMON STOCK" means the Class A common stock, par value $.01
per share, of Abercrombie & Fitch.
"EFFECTIVE DATE" means the Expiration Date of the Exchange Offer.
"EXCHANGE OFFER" means the offer by The Limited to exchange all of its
shares of Class A Common Stock for shares of common stock, par value $.50 per
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share, of The Limited, which offer commenced on April 15, 1998 and was
consummated as of the date hereof.
"LIMITED ENTITIES" means The Limited and its Subsidiaries, and "Limited
Entity" shall mean any of The Limited Entities.
"PERSON" means any individual, partnership, limited liability company,
joint venture, corporation, trust, unincorporated organization, government
(including any department or agency thereof) or other entity.
"SCHEDULES" means Schedules I, II, III, IV, V and VI hereto.
"SERVICES" means the various services described in the Schedules.
"SUBSIDIARY" means, as to any Person, any corporation, association,
partnership, joint venture or other business entity of which more than 50% of
the voting capital stock or other voting ownership interests is owned or
controlled directly or indirectly by such Person or by one or more of the
Subsidiaries of such Person or by a combination thereof.
"TOTAL VOTING POWER" with respect to any Person means the total
combined voting power of all securities of such Person entitled to vote
generally in the election of directors of such Person.
(b) Each of the following terms is defined in the Section set forth
opposite such term:
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TERM SECTION
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Abercrombie & Fitch Preamble
Abercrombie & Fitch Indemnified Person 4.05
Actions 4.04
Applicable Insurance 6.04
Benefit Billing 3.01
Benefits Services 3.04
Confidential Information 6.01
Customary Billing 3.01
Employee Welfare Plans 4.02
Financial Support Arrangements 6.03(a)
force majeure 7.05
Limited Indemnified Person 4.03
Pass-Through Billing 3.01
Payment Date 3.05
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TERM SECTION
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Prior Agreements 7.01
Service Costs 3.01
The Limited Preamble
The Limited Plans 3.04
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SECTION 1.02. Internal References. Unless the context indicates
otherwise, references to Articles, Sections and paragraphs shall refer to the
corresponding articles, sections and paragraphs in this Agreement and references
to the parties shall mean the parties to this Agreement.
ARTICLE 2
PURCHASE AND SALE OF SERVICES
SECTION 2.01. Purchase and Sale of Services. (a) On the terms and
subject to the conditions of this Agreement and in consideration of the Service
Costs described below, The Limited agrees to provide to Abercrombie & Fitch, or
procure the provision to Abercrombie & Fitch of, and Abercrombie & Fitch agrees
to purchase from The Limited, the Services. Unless otherwise specifically agreed
by The Limited and Abercrombie & Fitch, the Services to be provided or procured
by The Limited hereunder shall be substantially similar in scope, quality, and
nature to those customarily provided to, or procured on behalf of, the
Abercrombie & Fitch Entities prior to the Effective Date.
(b) It is understood that (i) Services to be provided to Abercrombie &
Fitch under this Agreement will, at Abercrombie & Fitch's request, be provided
to Subsidiaries of Abercrombie & Fitch and (ii) The Limited may satisfy its
obligation to provide or procure Services hereunder by causing one or more of
its Subsidiaries to provide or procure such Services. With respect to Services
provided to, or procured on behalf of, any Subsidiary of Abercrombie & Fitch,
Abercrombie & Fitch agrees to pay on behalf of such Subsidiary all amounts
payable by or in respect of such Services pursuant to this Agreement; provided
that, without in any way limiting the obligations of Abercrombie & Fitch to pay
for such Services, Abercrombie & Fitch may allow Abercrombie & Fitch Service
Corporation, a Delaware corporation, to make such payments on its behalf.
SECTION 2.02. Additional Services. In addition to the Services to be
provided or procured by The Limited in accordance with Section 2.01, if
requested by Abercrombie & Fitch, and to the extent that The Limited and
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Abercrombie & Fitch may mutually agree, The Limited shall provide additional
services (including services not provided by The Limited to the Abercrombie &
Fitch Entities prior to the Effective Date) to Abercrombie & Fitch. The scope of
any such services, as well as the term, costs, and other terms and conditions
applicable to such services, shall be as mutually agreed by The Limited and
Abercrombie & Fitch.
ARTICLE 3
SERVICE COSTS; OTHER CHARGES
SECTION 3.01. Service Costs Generally. The Schedules hereto indicate,
with respect to the Services listed therein, whether the costs to be charged to
Abercrombie & Fitch for such Service are to be determined by (i) the customary
billing method described in Section 3.02 ("CUSTOMARY BILLING"), (ii) the
pass-through billing method described in Section 3.03 ("PASS-THROUGH BILLING")
or (iii) based upon a calculation of certain costs relating to employee benefit
plans and benefit arrangements described in Section 3.04 ("BENEFIT BILLING").
The Customary Billing, Pass-Through Billing and Benefit Billing methods
applicable to Services provided to Abercrombie & Fitch are collectively referred
to herein as the "SERVICE COSTS". Abercrombie & Fitch agrees to pay to The
Limited in the manner set forth in Section 3.05 the Service Costs applicable to
each of the Services provided or procured by The Limited.
SECTION 3.02. Customary Billing. The costs of Services as to which the
Customary Billing method applies shall be equal to (i) the costs charged to
Abercrombie & Fitch by The Limited for such Services immediately prior to the
Effective Date (it being understood that from and after the Effective Date such
costs may be increased by The Limited in a manner consistent with the manner in
which such costs were increased from time to time prior to the Effective Date)
plus (ii) 5 percent. Notwithstanding the foregoing, any out-of-pocket,
third-party expenses incurred by The Limited in connection with the provision of
any Services as to which the Customary Billing method applies shall be passed
through to Abercrombie & Fitch without the 5 percent mark-up.
SECTION 3.03. Pass-Through Billing. The costs of Services as to which
the Pass-Through Billing method applies shall be equal to the aggregate amount
of third-party, out-of-pocket costs and expenses incurred by any Limited Entity
on behalf of any Abercrombie & Fitch Entity (which costs shall include but not
be limited to the costs incurred in connection with obtaining the consent of any
party to a contract or agreement to which any Limited Entity is a party where
such
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consent is related to and reasonably required for the provision of any Service).
If a Limited Entity incurs any such costs or expenses on behalf of any
Abercrombie & Fitch Entity as well as businesses operated by The Limited, The
Limited will allocate any such costs or expenses in good faith between the
various businesses on behalf of which such costs or expenses were incurred as
The Limited shall determine in the exercise of The Limited's reasonable
judgment. The Limited shall apply usual and accepted accounting conventions in
making such allocations, and The Limited or its agents shall keep and maintain
such books and records as may be reasonably necessary to make such allocations.
The Limited shall make copies of such books and records available to Abercrombie
& Fitch upon request and with reasonable notice.
SECTION 3.04. Certain Benefits Matters. (a) Prior to the Effective
Date, certain associates of Abercrombie & Fitch participated in certain benefit
plans sponsored by The Limited ("THE LIMITED PLANS").
(b) The costs payable by Abercrombie & Fitch for Services relating to
employee plans and benefit arrangements ("BENEFITS SERVICES") shall be
determined and, to the extent specified in Schedule I, billed as set forth on
Schedule I. It is the express intent of the parties that Service Costs relating
to the administration of Abercrombie & Fitch employee plans and the performance
of related Services will not exceed reasonable compensation for such Services as
defined in 29 CFR ss.2550.408c-2.
(c) The Limited and Abercrombie & Fitch agree to cooperate fully with
each other in the administration and coordination of regulatory and
administrative requirements associated with The Limited Plans.
SECTION 3.05. Invoicing and Settlement of Costs. (a) The Limited will
invoice or notify Abercrombie & Fitch on a monthly basis (not later than the
tenth day of each month), in a manner substantially consistent with the billing
practices used in connection with services provided to the Abercrombie & Fitch
Entities prior to the Effective Date (except as otherwise agreed), of the
Service Costs. In connection with the invoicing described in this Section
3.05(a), The Limited will provide to Abercrombie & Fitch the same billing data
and level of detail as it customarily provided to the Abercrombie & Fitch
Entities prior to the Effective Date and such other data as may be reasonably
requested by Abercrombie & Fitch.
(b) Abercrombie & Fitch agrees to pay on or before 30 days after the
date on which The Limited invoices or notifies Abercrombie & Fitch of the
Service Costs (or the next Business Day, if such day is not a Business Day)
(each, a "PAYMENT DATE") by wire transfer of immediately available funds payable
to the
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order of The Limited all amounts invoiced by The Limited pursuant to this
Section 3.05(a) during the preceding calendar month. If Abercrombie & Fitch
fails to pay any monthly payment within 30 days of the relevant Payment Date,
Abercrombie & Fitch shall be obligated to pay, in addition to the amount due on
such Payment Date, interest on such amount at the prime, or best, rate announced
by Banc One Corp. compounded monthly from the relevant Payment Date through the
date of payment.
ARTICLE 4
THE SERVICES
SECTION 4.01. General Standard of Service. Except as otherwise agreed
with Abercrombie & Fitch or described in this Agreement, and provided that The
Limited is not restricted by contract with third parties or by applicable law,
The Limited agrees that the nature, quality, and standard of care applicable to
the delivery of the Services hereunder will be substantially the same as that of
the Services which The Limited provides from time to time throughout its
businesses. The Limited shall use its reasonable efforts to ensure that the
nature and quality of Services provided to Abercrombie & Fitch associates either
by The Limited directly or through administrators under contract shall be
undifferentiated as compared with the same services provided to or on behalf of
The Limited associates under The Limited Plans. Subject to The Limited's express
obligations under this Agreement, the management of and control over the
provision of the Services shall reside solely with The Limited. Without limiting
the generality of the foregoing, all labor matters relating to associates of The
Limited and its Subsidiaries (including, without limitation, associates involved
in the provision of Services to Abercrombie & Fitch) shall be within the
exclusive control of The Limited, and Abercrombie & Fitch and its Subsidiaries
shall not take any action affecting such matters.
SECTION 4.02. Delegation. Subject to Section 4.01 above, Abercrombie &
Fitch hereby delegates to The Limited final, binding, and exclusive authority,
responsibility, and discretion to interpret and construe the provisions of
employee welfare benefit plans in which Abercrombie & Fitch has elected to
participate and which are administered by The Limited under this Agreement
(collectively, "EMPLOYEE WELFARE PLANS"). The Limited may further delegate such
authority to plan administrators to:
(i) provide administrative and other services;
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(ii) reach factually supported conclusions consistent with the
terms of the Employee Welfare Plans;
(iii) make a full and fair review of each claim denial and
decision related to the provision of benefits provided or arranged for
under the Employee Welfare Plans, pursuant to the requirements of
ERISA, if within sixty days after receipt of the notice of denial, a
claimant requests in writing a review for reconsideration of such
decisions. The plan administrator shall notify the claimant in writing
of its decision on review. Such notice shall satisfy all ERISA
requirements relating thereto; and
(iv) notify the claimant in writing of its decision on review.
SECTION 4.03. Limitation of Liability. (a) Abercrombie & Fitch agrees
that none of the Limited Entities and their respective directors, officers,
agents, and employees (each, a "LIMITED INDEMNIFIED PERSON") shall have any
liability, whether direct or indirect, in contract or tort or otherwise, to any
Abercrombie & Fitch Entity or any other Person for or in connection with the
Services rendered or to be rendered by any Limited Indemnified Person pursuant
to this Agreement, the transactions contemplated hereby or any Limited
Indemnified Person's actions or inactions in connection with any such Services
or transactions, except for damages which have resulted from such Limited
Indemnified Person's gross negligence or willful misconduct in connection with
any such Services, actions or inactions.
(b) None of the Limited Entities shall be liable for any special,
indirect, incidental, or consequential damages of any kind whatsoever
(including, without limitation, attorneys' fees) in any way due to, resulting
from or arising in connection with any of the Services or the performance of or
failure to perform The Limited's obligations under this Agreement. This
disclaimer applies without limitation (i) to claims arising from the provision
of the Services or any failure or delay in connection therewith; (ii) to claims
for lost profits; (iii) regardless of the form of action, whether in contract,
tort (including negligence), strict liability, or otherwise; and (iv) regardless
of whether such damages are foreseeable or whether The Limited has been advised
of the possibility of such damages.
(c) None of the Limited Entities shall have any liability to any
Abercrombie & Fitch Entity or any other Person for failure to perform The
Limited's obligations under this Agreement or otherwise, where (i) such failure
to perform is not caused by the gross negligence or wilful misconduct of the
Limited Entity providing such Services and (ii) such failure to perform
similarly affects the Limited Entities receiving such Services and does not have
a
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disproportionately adverse effect on the Abercrombie & Fitch Entities, taken as
a whole.
(d) In addition to the foregoing, Abercrombie & Fitch agrees that it
shall, in all circumstances, use commercially reasonable efforts to mitigate and
otherwise minimize its damages and those of the other Abercrombie & Fitch
Entities, whether direct or indirect, due to, resulting from or arising in
connection with any failure by The Limited to comply fully with its obligations
under this Agreement.
(e) Notwithstanding the foregoing provisions of this Section 4.03, in
the event of a substantial and continuing failure on the part of The Limited to
provide or procure any material Services, where such failure is reasonably
expected to have a material adverse effect on Abercrombie & Fitch and its
Subsidiaries, considered as a whole, Abercrombie & Fitch shall be entitled to
seek specific performance to cause The Limited to provide or procure such
Services.
SECTION 4.04. Indemnification of The Limited by Abercrombie & Fitch.
Abercrombie & Fitch agrees to indemnify and hold harmless each Limited
Indemnified Person from and against any damages, and to reimburse each Limited
Indemnified Person for all reasonable expenses as they are incurred in
investigating, preparing, pursuing, or defending any claim, action, proceeding,
or investigation, whether or not in connection with pending or threatened
litigation and whether or not any Limited Indemnified Person is a party
(collectively, "ACTIONS"), arising out of or in connection with Services
rendered or to be rendered by any Limited Indemnified Person pursuant to this
Agreement, the transactions contemplated hereby or any Limited Indemnified
Person's actions or inactions in connection with any such Services or
transactions; provided that Abercrombie & Fitch will not be responsible for any
damages of any Limited Indemnified Person that have resulted from such Limited
Indemnified Person's gross negligence or willful misconduct in connection with
any of the advice, actions, inactions, or Services referred to above (it being
understood and agreed that the provision by any Limited Entity of any of the
Services contemplated by Schedule II hereof without obtaining the consent of any
party to any contract or agreement to which any Limited Entity is a party as of
the date hereof shall not constitute gross negligence or wilful misconduct by
any Limited Entity; provided that the relevant Limited Entity has used
commercially reasonable efforts to obtain the relevant consent).
SECTION 4.05. Indemnification of Abercrombie & Fitch by The Limited.
The Limited agrees to indemnify and hold harmless the Abercrombie & Fitch
Entities and their respective directors, officers, agents, and employees (each,
a "ABERCROMBIE & FITCH INDEMNIFIED PERSON") from and against any damages,
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and will reimburse each Abercrombie & Fitch Indemnified Person for all
reasonable expenses as they are incurred in investigating, preparing, or
defending any Action, arising out of the gross negligence or willful misconduct
of any Limited Indemnified Person in connection with the Services rendered or to
be rendered pursuant to this Agreement.
SECTION 4.06. Further Indemnification. To the extent that any other
Person has agreed to indemnify any Limited Indemnified Person or to hold a
Limited Indemnified Person harmless and such Person provides services to The
Limited or any affiliate of The Limited relating directly or indirectly to any
employee plan or benefit arrangement for which Benefit Services are provided
under this Agreement, The Limited will exercise reasonable efforts (a) to make
such agreement applicable to any Abercrombie & Fitch Indemnified Person so
that each Abercrombie & Fitch Indemnified Person is held harmless or indemnified
to the same extent as any Limited Indemnified Person or (b) otherwise make
available to each Abercrombie & Fitch Indemnified Person the benefits of such
agreement.
SECTION 4.07. Notice of Certain Matters. If Abercrombie & Fitch at any
time believes that The Limited is not in full compliance with its obligations
under Section 4.01 of this Agreement, Abercrombie & Fitch shall so notify The
Limited in writing promptly (but not later than 30 days) after becoming aware of
such possible non-compliance by The Limited. Such notice (a "Non-Compliance
Notice") shall set forth in reasonable detail the basis for Abercrombie &
Fitch's belief as well as Abercrombie & Fitch's view as to the steps to be taken
by The Limited to address the possible non-compliance. For the 30 days after
receipt of such a notice, appropriate representatives of The Limited and
Abercrombie & Fitch shall work in good faith to develop a plan to resolve the
matters referred to in the Non-Compliance Notice. In the event such matters are
not resolved through such discussions, Abercrombie & Fitch may elect to
terminate The Limited's obligation to provide or procure, and its obligation to
purchase, the Service or Services referred to in its Non-Compliance Notice in
accordance with Section 5.02. In the event such matters are resolved through
such discussions and Abercrombie & Fitch does not elect to terminate such
Service or Services within 60 days of the end of the 30-day period referred to
in the third sentence of this Section 4.07, Abercrombie & Fitch shall not be
entitled to deliver another NonCompliance Notice or pursue other remedies with
respect to same or any substantially similar matter so long as The Limited
complies in all material respects with the terms of such resolution. In no event
shall any termination of this Agreement pursuant to this Section 4.07 limit or
affect Abercrombie & Fitch's right to seek remedies in accordance with Section
7.10 in respect of any breach by The Limited of any of its obligations under
this Agreement prior to such termination.
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ARTICLE 5
TERM AND TERMINATION
SECTION 5.01. Term. Except as otherwise provided in this Article 5, in
Section 7.05 or as otherwise agreed in writing by the parties, (a) this
Agreement shall have a term of three years from the Effective Date and (b) The
Limited's obligation to provide or procure, and Abercrombie & Fitch's obligation
to purchase, a Service shall cease as of the applicable date set forth in the
applicable Schedules or such earlier date determined in accordance with Section
5.02.
SECTION 5.02. Termination. (a) Abercrombie & Fitch may (i) from time to
time terminate this Agreement with respect to one or more of the Services, in
whole or in part, upon giving at least 30 days' prior notice to The Limited or
(ii) terminate this Agreement at any time upon 30 days' written notice.
(b) The Limited may terminate any Service at any time if Abercrombie &
Fitch shall have failed to perform any of its material obligations under this
Agreement relating to any such Service, The Limited has notified Abercrombie &
Fitch in writing of such failure and such failure shall have continued for a
period of 30 days after receipt of Abercrombie & Fitch of written notice of such
failure.
(c) Abercrombie & Fitch may terminate any Service at any time if The
Limited shall have failed to perform any of its material obligations under this
Agreement relating to any such Service, Abercrombie & Fitch has notified The
Limited in writing of such failure, and such failure shall have continued for a
period of 30 days after receipt by The Limited of written notice of such
failure.
SECTION 5.03. Effect of Termination. (a) Other than as required by law,
upon termination of any Service pursuant to Section 5.02, and upon termination
of this Agreement in accordance with its terms, The Limited will have no further
obligation to provide the terminated Service (or any Service, in the case of
termination of this Agreement) and Abercrombie & Fitch will have no obligation
to pay any fees relating to such Services or make any other payments hereunder;
provided that notwithstanding such termination, (i) Abercrombie & Fitch shall
remain liable to The Limited for fees owed and payable in respect of Services
provided prior to the effective date of the termination; (ii) The Limited shall
continue to charge Abercrombie & Fitch for administrative and program costs
relating to benefits paid after but incurred prior to the termination of any
Service and other services required to be provided after the termination of such
Service and Abercrombie & Fitch shall be obligated to pay such expenses in
accordance with the terms of this Agreement; and (iii) the provisions of
Articles 4, 5, 6 and 7 shall survive any such termination indefinitely. All
program and administrative
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costs attributable to associates of any of the Abercrombie & Fitch Entities for
The Limited Plans that relate to any period after the effective date of any such
termination shall be for the account of Abercrombie & Fitch.
(b) Following termination of this Agreement with respect to any
Service, The Limited and Abercrombie & Fitch agree to cooperate in providing for
an orderly transition of such Service to Abercrombie & Fitch or to a successor
service provider. Without limiting the foregoing, The Limited agrees to (i)
provide, within 30 days of the termination, copies in a format designated by The
Limited, of all records relating directly or indirectly to benefit
determinations of Abercrombie & Fitch associates, including but not limited to
compensation and service records, correspondence, plan interpretive policies,
plan procedures, administration guidelines, minutes, or any data or records
required to be maintained by law and (ii) work with Abercrombie & Fitch in
developing a transition schedule.
ARTICLE 6
ADDITIONAL AGREEMENTS
SECTION 6.01. Confidential Information. (a) Abercrombie & Fitch and The
Limited hereby covenant and agree to hold in trust and maintain confidential all
Confidential Information relating to the other party or any of such other
party's Subsidiaries. Without limiting the generality of the foregoing,
Confidential Information relating to a party or any of its Subsidiaries shall be
disclosed only to those associates of the other party who need to know such
information in connection with their ordinary course employment activities and
in no event shall any such Confidential Information be disclosed to any other
Person. "CONFIDENTIAL INFORMATION" shall mean all information, materials and
processes relating to a party or any Subsidiary of such party obtained by the
other party or any Subsidiary of such other party at any time (whether prior to
or after the date hereof and whether in connection with this Agreement or
otherwise) in any format whatsoever (whether orally, visually, in writing,
electronically or in any other form) and shall include, but not be limited to,
economic and business information or data, business plans, computer software and
information relating to associates, vendors, customers, products, fashion,
design, stores, financial performance and projections, processes, strategies,
systems and real estate, but shall not include (i) information which becomes
generally available other than by release in violation of the provisions of this
Section 6.01, (ii) information which becomes available on a non-confidential
basis to a party from a source other than the other party to this Agreement,
provided the party in question reasonably believes that such source is
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<PAGE> 16
not or was not bound to hold such information confidential and (iii) information
acquired or developed independently by a party without violating this Section
6.01 or any other confidentiality agreement with the other party.
Notwithstanding any provision of this Section 6.01 to the contrary, a party may
disclose such portion of the Confidential Information relating to the other
party to the extent, but only to the extent, the disclosing party reasonably
believes that such disclosure is required under law or the rules of a securities
exchange; provided that the disclosing party first notifies the other party
hereto of such requirement and allows such party a reasonable opportunity to
seek a protective order or other appropriate remedy to prevent such disclosure.
The parties acknowledge that money damages would not be a sufficient remedy for
any breach of the provisions of this Section 6.01 and that the non-breaching
party shall be entitled to equitable relief in a court of law in the event of,
or to prevent, a breach or threatened breach of this Section 6.01.
(b) Notwithstanding the provisions of Section 6.01(a), upon a Change of
Control, Abercrombie & Fitch shall (i) promptly (but in no event later than 30
days after the occurrence of such Change of Control) return to The Limited or
destroy all Confidential Information in its possession (or that of any of its
Subsidiaries) relating to The Limited or any of its Subsidiaries, (ii) no longer
be permitted to use such Confidential Information in its business or operations
(or the business or operations of any of its Subsidiaries) and (iii) promptly
(but in no event later than 30 days after the occurrence of such Change of
Control) deliver a written certificate to The Limited executed by Abercrombie &
Fitch's Chief Executive Officer expressly acknowledging the obligations set
forth in clauses (i) and (ii) of this sentence and certifying that Abercrombie &
Fitch has and will continue to adhere to such requirements.
SECTION 6.02. Associate Matters. For so long as any operations of
Abercrombie & Fitch or of any of its Subsidiaries are located in any of The
Limited's facilities and for one year thereafter, each of The Limited and
Abercrombie & Fitch agrees that (without the prior written consent of the other)
it will not, and will cause each of its Subsidiaries not to, directly or
indirectly, (i) solicit or otherwise attempt to induce or influence any
associate of the other party (or any of its Subsidiaries) to leave employment
with his or her then-current employer or (ii) employ any exempt or salaried
associate of the other party (or any of its Subsidiaries) other than any such
associates who were assigned solely to a single store location.
SECTION 6.03. Financial Support Arrangements. (a) Abercrombie & Fitch
agrees to cooperate reasonably with any efforts undertaken by The Limited or any
of its Subsidiaries intended to release The Limited and its Subsidiaries from
their obligations under any guarantees (including, without limitation,
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<PAGE> 17
guarantees of lease obligations), letters of credit, surety bonds and other
financial support arrangements maintained as of the date hereof by The Limited
or any of its Subsidiaries in connection with the business or operations of
Abercrombie & Fitch or any of its Subsidiaries (collectively, the "FINANCIAL
SUPPORT ARRANGEMENTS").
(b) If, after the date hereof, (i) any amounts are drawn on or paid
under any Financial Support Arrangement by The Limited or any of its
Subsidiaries or (ii) The Limited or any of its Subsidiaries pays any fees, costs
or expenses relating to any Financial Support Arrangement, Abercrombie & Fitch
shall reimburse The Limited for such amounts promptly after receipt from The
Limited of notice thereof accompanied by written evidence of the underlying
payment obligation.
(c) Abercrombie & Fitch will not, and will not permit any of its
Subsidiaries to, take any action (including, without limitation, entering into
any agreement that could result in a Change of Control) that could materially
and adversely affect the ability of Abercrombie & Fitch to satisfy its
obligations under any material contract, agreement or arrangement in respect of
which a Financial Support Arrangement is in place unless, prior to the taking of
such action, appropriate provision is made such that, in the reasonable judgment
of The Limited, The Limited's exposure under any Financial Support Arrangement
is not materially increased as a result of the taking of any such action.
SECTION 6.04. Insurance Matters. (a) From and after the date of this
Agreement, The Limited shall not, and shall cause each of its Subsidiaries not
to, take or fail to take any action if such action or inaction, as the case may
be, would adversely affect the applicability of any insurance in effect on the
date of this Agreement that covers all or any part of the assets, liabilities,
business or employees of Abercrombie & Fitch or any Subsidiary of Abercrombie &
Fitch with respect to events occurring prior to the Effective Date ("APPLICABLE
INSURANCE"), it being understood that in no event shall The Limited or any
Subsidiary of The Limited be obligated to pay premiums with respect to periods
after the Effective Date in respect of Applicable Insurance.
(b) The Limited agrees that, from and after the Effective Date, all
Applicable Insurance directly or indirectly applicable to any assets,
liabilities, business or employees of Abercrombie & Fitch or any Subsidiary of
Abercrombie & Fitch shall be for the benefit of Abercrombie & Fitch and the
Subsidiaries of Abercrombie & Fitch, it being understood that such Applicable
Insurance shall also be for the benefit of The Limited and its Subsidiaries to
the extent directly or indirectly applicable to any assets, liabilities,
business or employees of The Limited or any of its Subsidiaries. Without
limiting the generality of the foregoing, from and after the Effective Date and
upon Abercrombie & Fitch's
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<PAGE> 18
reasonable request, The Limited shall use its reasonable efforts to modify,
amend or assign all Applicable Insurance policies and arrangements so that
Abercrombie & Fitch is the direct beneficiary of such Applicable Insurance with
all rights to enforce, obtain the benefit of and take all other action in
respect of such Applicable Insurance; provided that, if the modifications,
amendments or assignments contemplated by this Section 6.04(b) are not
permissible, The Limited shall, and shall cause each of its Subsidiaries to, use
its reasonable efforts to enter into such other arrangements as Abercrombie &
Fitch may reasonably request to ensure that Abercrombie & Fitch and the
Subsidiaries of Abercrombie & Fitch are entitled to the benefit (to the fullest
extent set forth in the relevant policies and arrangements) of any Applicable
Insurance.
ARTICLE 7
MISCELLANEOUS
SECTION 7.01. Prior Agreements. In the event there is any conflict
between the provisions of this Agreement, on the one hand, and provisions of
prior services agreements among any Limited Entity and any of the Abercrombie &
Fitch businesses (the "PRIOR AGREEMENTS"), on the other hand, the provisions of
this Agreement shall govern and such provisions in the Prior Agreements are
deemed to be amended so as to conform with this Agreement.
SECTION 7.02. Future Litigation and Other Proceedings. In the event
that Abercrombie & Fitch (or any of its Subsidiaries or any of its or their
officers or directors) or The Limited (or any of its Subsidiaries or any of its
or their officers or directors) at any time after the date hereof initiates or
becomes subject to any litigation or other proceedings before any governmental
authority or arbitration panel with respect to which the parties have no prior
agreements (as to indemnification or otherwise), the party (and its Subsidiaries
and its and their officers and directors) that has not initiated and is not
subject to such litigation or other proceedings shall comply, at the other
party's expense, with any reasonable requests by the other party for assistance
in connection with such litigation or other proceedings (including by way of
provision of information and making available of employees as witnesses). In the
event that Abercrombie & Fitch (or any of its Subsidiaries or any of its or
their officers or directors) and The Limited (or any of its Subsidiaries or any
of its or their officers or directors) at any time after the date hereof
initiate or become subject to any litigation or other proceedings before any
governmental authority or arbitration panel with respect to which the parties
have no prior agreements (as to indemnification or otherwise), each party (and
its officers and directors) shall, at their own expense, coordinate
15
<PAGE> 19
their strategies and actions with respect to such litigation or other
proceedings to the extent such coordination would not be detrimental to their
respective interests and shall comply, at the expense of the requesting party,
with any reasonable requests of the other party for assistance in connection
therewith (including by way of provision of information and making available of
employees as witnesses).
SECTION 7.03. No Agency. Nothing in this Agreement shall constitute or
be deemed to constitute a partnership or joint venture between the parties
hereto or, except to the extent provided in Section 4.02, constitute or be
deemed to constitute any party the agent or employee of the other party for any
purpose whatsoever and neither party shall have authority or power to bind the
other or to contract in the name of, or create a liability against, the other in
any way or for any purpose.
SECTION 7.04. Subcontractors. The Limited may hire or engage one or
more subcontractors to perform all or any of its obligations under this
Agreement; provided that, subject to Section 4.03, The Limited will in all cases
remain primarily responsible for all obligations undertaken by it in this
Agreement with respect to the scope, quality and nature of the Services provided
to Abercrombie & Fitch.
SECTION 7.05. Force Majeure. (a) For purposes of this Section, "FORCE
MAJEURE" means an event beyond the control of either party, which by its nature
could not have been foreseen by such party, or, if it could have been foreseen,
was unavoidable, and includes without limitation, acts of God, storms, floods,
riots, fires, sabotage, civil commotion or civil unrest, interference by civil
or military authorities, acts of war (declared or undeclared) and failure of
energy sources.
(b) Without limiting the generality of Section 4.03(a), neither party
shall be under any liability for failure to fulfill any obligation under this
Agreement, so long as and to the extent to which the fulfillment of such
obligation is prevented, frustrated, hindered, or delayed as a consequence of
circumstances of force majeure; provided that such party shall have exercised
all due diligence to minimize to the greatest extent possible the effect of
force majeure on its obligations hereunder.
(c) Promptly on becoming aware of force majeure causing a delay in
performance or preventing performance of any obligations imposed by this
Agreement (and termination of such delay), the party affected shall give written
notice to the other party giving details of the same, including particulars of
the actual and, if applicable, estimated continuing effects of such force
majeure on the obligations of the party whose performance is prevented or
delayed. If such
16
<PAGE> 20
notice shall have been duly given, and actual delay resulting from such force
majeure shall be deemed not to be a breach of this Agreement, and the period for
performance of the obligation to which it relates shall be extended accordingly;
provided that if force majeure results in the performance of a party being
delayed by more than 60 days, the other party shall have the right to terminate
this Agreement with respect to any Service effected by such delay forthwith by
written notice.
SECTION 7.06. Entire Agreement. This Agreement (including the Schedules
constituting a part of this Agreement) and any other writing signed by the
parties that specifically references this Agreement constitute the entire
agreement among the parties with respect to the subject matter hereof and
supersede all prior agreements, understandings and negotiations, both written
and oral, between the parties with respect to the subject matter hereof. This
Agreement is not intended to confer upon any Person other than the parties
hereto any rights or remedies hereunder.
SECTION 7.07. Information. Subject to applicable law and privileges,
each party hereto covenants and agrees to provide the other party with all
information regarding itself and transactions under this Agreement that the
other party reasonably believes are required to comply with all applicable
federal, state, county and local laws, ordinances, regulations and codes,
including, but not limited to, securities laws and regulations.
SECTION 7.08. Notices. Any notice, instruction, direction or demand
under the terms of this Agreement required to be in writing will be duly given
upon delivery, if delivered by hand, facsimile transmission, intercompany mail,
or mail, to the following addresses:
(a) If to Abercrombie & Fitch, to:
Abercrombie & Fitch Co.
Four Limited Parkway
Reynoldsburg, OH 43068
Attention: Seth R. Johnson
Fax: 614-577-6950
(b) If to The Limited, to:
The Limited, Inc.
Three Limited Parkway
Columbus, OH 43230
Attention: Samuel P. Fried
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<PAGE> 21
Fax: 614-415-7199
with a copy to:
Davis Polk & Wardwell
450 Lexington Avenue
New York, NY 10017
Attention: David L. Caplan
Fax: 212-450-4800
or to such other addresses or telecopy numbers as may be specified by like
notice to the other parties.
SECTION 7.09. Governing Law. This Agreement shall be construed in
accordance with and governed by the substantive internal laws of the State of
Delaware.
SECTION 7.10. Dispute Resolution. Subject to Sections 4.03(e), 6.01 and
6.02, the parties hereto agree that any dispute arising out of or in connection
with this Agreement or the transactions contemplated hereby shall be submitted
to arbitration. The parties shall negotiate in good faith and use all reasonable
efforts to agree upon a resolution of any dispute after receipt of written
notice of such dispute from a party. If the parties cannot agree on an amicable
settlement within 30 days from written submission of the matter by the party to
the other party, the matter shall be submitted to arbitration. Each party shall
select one arbitrator, and the two arbitrators so appointed shall select a third
arbitrator. In the event such arbitrators cannot agree upon a third arbitrator,
a third arbitrator shall be selected in accordance with the rules as then in
effect of the American Arbitration Association. The decision of two of the three
arbitrators so appointed shall be conclusive and binding upon the parties to
this Agreement. Any such arbitration shall be held in Columbus, Ohio under the
rules to be mutually agreed upon by the arbitrators selected by the parties or,
if no such agreement can be reached, under the rules as then in effect of the
American Arbitration Association. Each party to any such arbitration shall pay
its own expenses; provided that the fees, costs and expenses of the third
arbitrator shall be borne equally by the parties.
SECTION 7.11. WAIVER OF JURY TRIAL. THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
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<PAGE> 22
SECTION 7.12. Severability. If any provision of this Agreement shall be
invalid or unenforceable, such invalidity or unenforceability shall not render
the entire Agreement invalid. Rather, the Agreement shall be construed as if not
containing the particular invalid or unenforceable provision, and the rights and
obligations of each party shall be construed and enforced accordingly.
SECTION 7.13. Amendment. This Agreement may only be amended by a
written agreement executed by both parties hereto.
SECTION 7.14. Counterparts. This Agreement may be executed in separate
counterparts, each of which shall be deemed an original and all of which, when
taken together, shall constitute one agreement.
SECTION 7.15. Services to The Limited. Abercrombie & Fitch agrees to
permit the Limited Entities to use the trademarks and service marks owned by the
Abercrombie & Fitch Entities at no cost to any Limited Entity in The Limited's
annual reports to shareholders for fiscal years 1997 and 1998 and publicity
materials and for other similar purposes through the end of fiscal year 1998.
SECTION 7.16. Termination of Old Services Agreement. Effective as of
the date hereof, The Limited's obligation to provide or procure, and Abercrombie
& Fitch's obligation to purchase, services under the Old Services Agreement
shall terminate automatically without any further action by any party.
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<PAGE> 23
IN WITNESS WHEREOF, the parties have caused this Agreement to be signed
by their duly authorized representatives.
ABERCROMBIE & FITCH CO.
By:
----------------------------------
Name:
Title:
THE LIMITED, INC.
By:
----------------------------------
Name:
Title:
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<PAGE> 24
HUMAN RESOURCES AND BENEFITS SERVICES - SCHEDULE I
The Limited's obligation to provide or procure, and Abercrombie &
Fitch's obligation to purchase, the services described in this Schedule shall
terminate three months after the Effective Date.
SERVICE BILLING METHODOLOGY
------- -------------------
MEDICAL/DENTAL PROGRAMS
Benefits/Claims Customary Billing
---------------
O CLAIMS COSTS FOR ABERCROMBIE & FITCH ASSOCIATES
PARTICIPATING IN THE FOLLOWING LIMITED PLANS AND
PROGRAMS:
O MEDICAL PLAN
O SHORT TERM DISABILITY PLAN
O PRESCRIPTION DRUG PLAN
O DENTAL PLAN
ADMINISTRATION Customary Billing
--------------
O ADMINISTRATION OF ABOVE ABERCROMBIE & FITCH
PLANS AND PROGRAMS, INCLUDING
O MAINTENANCE OF ELIGIBILITY FILES UPON
ABERCROMBIE & FITCH'S NOTIFICATION OF STATUS
CHANGES
O CLAIM ADJUDICATION UNDER THE TERMS OF
APPLICABLE PLANS
O MAINTENANCE OF TOLL-FREE TELEPHONE LINES FOR
INQUIRIES, ETC.
O SUPPORT SERVICES (INTERNAL AND EXTERNAL,
INCLUDING COBRA)
PARTICIPANT CONTRIBUTIONS
-------------------------
O PARTICIPANT CONTRIBUTIONS FOR DEDUCTIONS ABOVE Participant Payroll
PLANS OR DIRECT BILL TO ASSOCIATES/RETIREES
OTHER BENEFIT PLANS
LIFE INSURANCE Customary Billing
--------------
O LIFE INSURANCE FOR ABERCROMBIE & FITCH
ASSOCIATES (INCLUDING ACCIDENTAL DEATH AND
DISMEMBERMENT)
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<PAGE> 25
SERVICE BILLING METHODOLOGY
------- -------------------
SAVINGS/RETIREMENT PLANS
------------------------
O COMPANY MATCH/RETIREMENT CONTRIBUTION Customary Billing
O PARTICIPANT CONTRIBUTIONS Payroll Deduction
LONG-TERM DISABILITY PLANS
--------------------------
O EMPLOYER CONTRIBUTIONS Customary Billing
O ASSOCIATE CONTRIBUTIONS Payroll Deduction
OTHER BENEFIT SUPPORT SERVICES Customary Billing
O AUDIT, LEGAL, ACTUARIAL FEES AND RELATED
RECOVERIES
O PAYROLL SUPPORT OF BENEFITS ADMINISTRATION
(INSURANCE, SAVINGS, OTHER BENEFIT PLANS AND
STATUTORY REQUIREMENTS)
EMPLOYEE STOCK PURCHASE PROGRAM CUSTOMARY BILLING
O PAYROLL SERVICES
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<PAGE> 26
INFORMATION TECHNOLOGY SERVICE - SCHEDULE II
The Limited's obligation to provide or procure, and Abercrombie &
Fitch's obligation to purchase, the services described in this Schedule shall
terminate on the first anniversary of the Effective Date. The costs for the
services on this Schedule shall be billed using the Customary Billing method.
DATA CENTER SERVICES
Computing services consistent with services provided to Abercrombie & Fitch in
the past, including:
o providing the following operating environments:
o MVS environment at or above the current release of MVS SP6.0.3
o Hardware environment to execute the MVS operating system described
above
o IBM CICS environments for Test and Production applications at or above
the current release of 2.1 and 4.1, respectively
o providing the following software:
o IBM DB/2, Version 5.1
o IBM TSO/ISPF, release 4.4
o IBM VSAM and IDCAMS software
o IBM ADDCOM (ADCS), NDM and GIX for store polling support
o Compuware File-Aid software, release 8.0.1
o SAS Institute Base SAS, release 6.09
o Maintain scheduling software to run the production job streams.
o Balance job streams as a means of controlling production applications.
o Maintain current print distribution by DC4 operations.
o Provide monitoring reports for Abercrombie & Fitch I.T. management.
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<PAGE> 27
o Provide data transmission to other entities. ( e.g., banks).
o Maintain the Abercrombie & Fitch Polling modems in the DC1 data center.
o Maintain hardware for tape and DASD support.
o Maintain current connectivity to the SNA network at the Abercrombie & Fitch
offices in Reynoldsburg.
o Sufficient spool capacity for reports to laser and impact printers.
o Maintain storage libraries for Abercrombie & Fitch to store Test and
Production source code and object code, including ADCSLIB, ASM, COBOL,
CNTL, PROCLIB, COPYLIB, MAPLIB, PARMLIB, SAS, VSAM and DOC libraries.
YEAR 2000 SERVICES
o Maintain a testing environment consistent with other Limited Inc.
businesses for compliance testing of MVS systems.
o Allow Abercrombie & Fitch to complete work under the Limited Project
Management Office towards meeting ITAA standards for Year 2000.
TECHNICAL SERVICES
o Technical support for physical data in DB/2 and VSAM.
o Technical support for SNA and VTAM.
o Technical support for system usage. ( i.e. new users, RACF ID's).
TELECOMMUNICATIONS SERVICES
o Provide move/add/change services to Reynoldsburg offices
o Maintain telecom switch and connections to Ameritech and MCI.
POINT-OF-SALE HELP DESK SERVICES
o Provide the current point-of-sale help desk support from Limited stores at
or above current levels.
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<PAGE> 28
TRANSITION SERVICES
o The Limited EOC will provide technical services ("TRANSITION SERVICES") to
assist Abercrombie & Fitch to move to another Data Center upon the
termination of the period (the "SERVICE PERIOD") during which The Limited
is obligated to provide or procure the other services contemplated by this
Schedule. These Transition Services will entail consulting with Abercrombie
& Fitch technical services staff concerning the hardware and operating
system environment in use at the EOC, but will not include any Services not
specifically contemplated in this or the following six paragraphs. Without
limiting the generality of the foregoing, Transition Services will not
include configuration, tailoring or tuning of the environment at any new
Abercrombie & Fitch Data Center.
o Copies of all Abercrombie data, both current and all available historical,
will be made available to complete a transition. This data will be provided
in magnetic tape format (or such other format compatible with devices in
use at the EOC as Abercrombie & Fitch reasonably requests).
o Copies of all applications software directly licensed to Abercrombie &
Fitch will also be made available to complete a transition, consistent with
any license agreements governing use of that software. These programs
include any and all application software and utilities licensed directly to
Abercrombie & Fitch and used to operate its production and test systems.
Applications and operating system software licensed to The Limited or any
of its affiliates and made available to or used for the benefit of
Abercrombie & Fitch under this Schedule II will not be available for
Abercrombie & Fitch's use unless the applicable licensor consents.
Abercrombie & Fitch acknowledges that, when obtainable, such consent often
is contingent upon payment of a licensing charge (which shall be the sole
responsibility of Abercrombie & Fitch).
o Where applicable, technically feasible and contractually permissible, upon
request Abercrombie data and directly-licensed software may be
electronically transmitted to Abercrombie & Fitch's data center in lieu of
magnetic tape or other media transfer.
o. Abercrombie-owned polling modems currently at the EOC data center will be
transferred to the new data center for continuation of communications at
the end of the Service Period. At the end of the Service Period, polling
modems not owned by Abercrombie & Fitch but used for the benefit of
Abercrombie & Fitch will be made available to Abercrombie & Fitch for
purchase at net book value at the end of the Service Period (with net book
value to be calculated in
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<PAGE> 29
accordance with generally accepted accounting principles applied
consistently with the manner in which they are currently applied).
o Network systems hardware owned by Abercrombie & Fitch and all other
"downstream" communications hardware owned by Abercrombie & Fitch will
remain assets of Abercrombie & Fitch.
o All telecommunications hardware used exclusively in connection with
Abercrombie & Fitch's business will be acquired by Abercrombie & Fitch at
the end of the Service Period. The purchase price to be paid by Abercrombie
& Fitch for such hardware will be the net book value of the hardware at the
end of the Service Period (with net book value to be calculated in
accordance with generally accepted accounting principles applied
consistently with the manner in which they are currently applied).
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DISTRIBUTION CENTER, TRANSPORTATION, ENGINEERING AND RELATED SERVICES -
SCHEDULE III
The Limited's obligation to provide or procure, and Abercrombie &
Fitch's obligation to purchase, the services described in this Schedule shall
terminate on the third anniversary of the Effective Date. The costs for the
services on this Schedule shall be billed using the Customary Billing method,
except as otherwise indicated.
DISTRIBUTION AND STORAGE SERVICES
Distribution and storage services will include receiving, handling, processing,
storing and shipping Abercrombie & Fitch merchandise as well as other goods and
materials to the extent reasonably related to Abercrombie & Fitch merchandise.
Procedures will be maintained to ensure process accountability, inventory
control, quality inspection, store-ready preparation or other special handling
services on the terms, subject to the conditions and on the basis contemplated
by this Agreement. Abercrombie & Fitch agrees that The Limited, including
Limited Distribution Services, Inc. ("LDS"), may from time to time modify its
procedures and processes, subject to the terms of this Agreement.
Without limiting the generality of the foregoing, specific services to be
performed by LDS include:
o Cycle count warehoused merchandise with the goal of cycling through the
Abercrombie & Fitch merchandise once each quarter.
o New store merchandise to be sensor-tagged by the distribution center prior
to shipment.
o Magazine merchandise to be poly-bagged by the distribution center prior to
shipment.
LDS will operate and maintain the facilities, distribution processing,
information systems and distribution related equipment (including safeguarding
the facilities and their contents), and provide a dedicated management staff and
work force, to the extent necessary to perform the services contemplated by this
Schedule on the terms, subject to the conditions and on the basis set forth in
this Agreement.
LDS may, at its discretion, make use of any facilities at its disposal in
addition to the primary Abercrombie & Fitch distribution site to perform the
foregoing services, provided that the required service levels are maintained. It
is understood
<PAGE> 31
that the associates, methods, systems, equipment and facilities of LDS shall at
all times be under LDS' exclusive direction and control.
TRANSPORTATION SERVICES
LDS will provide all shipping and transportation services and support as
follows: inbound and outbound shipping consolidation, international and domestic
freight forwarding, consolidation, CFS, transportation and store delivery
services through third party providers, and related management and
administration of these activities.
Abercrombie & Fitch agrees to timely communicate with LDS regarding business
plans which may impact LDS' ability to perform such services, including global
production plans, store distributions strategies, or significant changes in
requirements.
On the terms and subject to the conditions set forth in this Agreement, LDS will
provide Abercrombie & Fitch access to The Limited Inc. Freight Tracking System
(LIFTS). Any future improvements to the system which benefit other businesses
served by LDS will be made available to Abercrombie & Fitch on the same basis as
they are made available to such other businesses. Abercrombie & Fitch will
continue to provide purchase order uploads to the LIFTS system and agrees to
cooperate with LDS in efforts to improve the system, provided no substantial
expense or investment will be required of Abercrombie & Fitch.
SUPPLIES
The current procedure of tracking Abercrombie & Fitch supply purchases through
purchase orders to remain in effect.
ENGINEERING SERVICES
The following services will be provided by LDS Engineering for the design and
construction of offices and distribution centers:
o Requirements analysis and validation
o Schematic design and space or operation layout
o Cost estimating
o Engineering
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<PAGE> 32
o Production of construction documents (drawing and specification)
o Solicitation and evaluation of competitive bids
o Purchasing, delivery, and implementation
o Project scheduling and management
o Project cost tracking and reporting
o Moving and start up assistance
FIXTURES
o It is understood that the Abercrombie & Fitch Distribution Center is
scheduled to relocate from its current facility to an other facility owned
by The Limited, with such relocation to be effected on or prior to
September 1, 1998. In connection with such relocation, The Limited will
purchase on Abercrombie & Fitch's behalf (with Abercrombie & Fitch to
reimburse The Limited promptly for all such purchases) hangers, racks and
other equipment (the "Distribution Center Equipment") required to operate
such new Distribution Center in the manner agreed by Abercrombie & Fitch
and The Limited prior to the date hereof. It is understood that the cost of
such hangers, racks and other equipment is expected to be approximately
$8.3 million in the aggregate (of which (i) $4.8 million will be payable
for hangers, racks and other equipment currently expected to be required to
meet Abercrombie & Fitch's needs in the Fall of 1998 and (ii) $3.5 million
will be payable for hangers, racks and other equipment currently expected
to be required to meet Abercrombie & Fitch's needs in the Spring of 1998,
it being understood that the amounts referred to in clause (ii) are subject
to adjustment during the Fall of 1998 in a manner mutually satisfactory to
The Limited and Abercrombie & Fitch based on Abercrombie & Fitch's then-
current business plan).
o Any Distribution Center Equipment which is not purchased by The Limited
shall be dismantled and removed from the leased Distribution Center
premises by Abercrombie & Fitch at its sole cost upon the termination of
its occupancy of such premises.
o Except for the arrangements with respect to the Distribution Center
Equipment set forth above, all further capital improvements to the
Distribution Center shall be the sole responsibility of Abercrombie &
Fitch.
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o In the event of a Change of Control involving a Person which competes with
any current business of The Limited or any of its Subsidiaries, The
Limited and Abercrombie & Fitch will work in good faith and use their
reasonable best efforts to develop a plan whereby Abercrombie & Fitch
relocates from any facilities owned by The Limited as promptly after the
Change of Control as is reasonably practicable.
4
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STORE PLANNING SERVICES - SCHEDULE IV
The Limited's obligation to provide or procure, and Abercrombie &
Fitch's obligation to purchase, the services described in this Schedule shall
terminate on the first anniversary of the Effective Date. The Limited and
Abercrombie & Fitch agree that the capitalized construction costs for the
services described in this Schedule shall be billed upon the completion of the
construction of a store, and that Abercrombie & Fitch shall pay such costs for
each store within 30 days after the opening of such store. Costs for services
other than capitalized construction costs shall be billed in accordance with the
Customary Billing Methodology.
STORE PLANNING SERVICES TO BE PROVIDED BY LIMITED BILLING METHODOLOGY
STORE PLANNING
Limited Store Planning, Inc. ("LSP") will provide the Customary Billing
following services to Abercrombie & Fitch for
Abercrombie & Fitch stores to be opened or remodeled
in 1998:
o Initial design of space
o Production of architectural and mechanical drawings
of the store design
o Construction of store to drawing specifications
o Purchasing, shipment, and installation of materials
o Project management and accumulation of capital
costs
o Assisting Abercrombie & Fitch as necessary in the transition of
responsibility from LSP to Abercrombie & Fitch, including the transfer of
following:
o Store design plans
o Project management software
o Information pertaining to contractors, suppliers,
and other non-Limited resources used in the design
and construction of Abercrombie & Fitch stores
<PAGE> 35
REAL ESTATE SERVICES - SCHEDULE V
The Limited's obligation to provide or procure, and Abercrombie &
Fitch's obligation to purchase, the services described in this Schedule shall
terminate on the first anniversary of the Effective Date. The costs for the
services on this Schedule shall be billed using the Customary Billing method.
REAL ESTATE SERVICES TO BE PROVIDED BY LIMITED REAL ESTATE
Limited Real Estate ("LRE") will provide the following services to Abercrombie &
Fitch:
o Complete necessary deal follow-up and legal work for all deals in process
at the Effective Date.
o Provide Abercrombie & Fitch with the following:
o Leasing files, center maps, leasing plans and contact person
information for:
o all existing Abercrombie & Fitch locations.
o the top 600 centers.
o premier specialty centers.
o The Limited's list of developers, corporate offices, contacts, phone
numbers, etc.
o Copies of PCR's and ROA's for all existing and approved Abercrombie
& Fitch deals.
o Copies, including disc copies, if applicable, of existing form
leases with developers and Limited form leases.
o Copies of all Abercrombie & Fitch leases.
o Current version of the in-house developed real estate system and
data.
o Allow Abercrombie & Fitch to participate in the consolidated utility
management system related to deregulation.
2
<PAGE> 36
TAX SERVICES- SCHEDULE VI
The Limited's obligation to provide or procure, and Abercrombie &
Fitch's obligation to purchase, the services described in this Schedule shall
terminate no later than the filing due date for the income tax returns of
Abercrombie & Fitch for fiscal year 1998. The costs for the services on this
Schedule shall be billed using the Customary Billing method.
The Limited will:
o provide assistance and coordinate with outside tax accountants and
professional as is reasonably necessary for the preparation and filing of
the following income tax returns of Abercrombie & Fitch:
o federal consolidated income tax returns for the tax periods ending on
or before January 30, 1999.
o combined and separate state income or franchise tax returns for tax
periods ending on or before January 30, 1999.
o assist Abercrombie & Fitch in preparing tax packages and determining the
amount of estimated income tax installments for the federal and state income
taxes for the tax periods described above.
o assist Abercrombie & Fitch to the extent necessary in the transition of tax
responsibility from The Limited to Abercrombie &Fitch, by
o providing access to various tax resources of The Limited, including tax
library, tax software and tax personnel;
o allowing a designated Abercrombie & Fitch person to observe, learn and
participate in the planning, preparation and filing of Abercrombie
&Fitch income tax returns described above; and
o providing tax planning services regarding Abercrombie & Fitch's income
taxes for the tax periods described above.