Tax Sharing Agreement - Abercrombie & Fitch Co. and The Limited Inc.
TAX SHARING AGREEMENT
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THIS TAX SHARING AGREEMENT ("Agreement") is entered into as of
September 27, 1996 by and between Abercrombie & Fitch Co., a Delaware
corporation ("Abercrombie & Fitch"), and The Limited, Inc., a Delaware
corporation ("The Limited").
RECITALS
WHEREAS, The Limited is the common parent corporation of an affiliated
group of corporations within the meaning of Section 1504(a) of the Internal
Revenue Code of 1986, as amended (the "Code");
WHEREAS, The Limited beneficially owns all of the issued and
outstanding Abercrombie & Fitch Class B Common Stock, par value $.01 per share
and Abercrombie & Fitch is a member of The Limited consolidated group for
federal income tax purposes;
WHEREAS, the parties are contemplating the possibility that
Abercrombie & Fitch will issue shares of Class A Common Stock, $.01 par value
per share to the public in an offering (the "Initial Public Offering")
registered under the Securities Act of 1933, as amended;
WHEREAS, The Limited Group (as defined below) has filed and intends to
file consolidated federal income tax returns as permitted by Section 1501 of the
Code and certain members of the Abercrombie & Fitch Group (as defined below) and
certain members of The Limited Sub-Group (as defined below), have filed and
intend to file returns relating to Combined State Taxes (as defined below);
WHEREAS, Abercrombie & Fitch desires to engage The Limited to provide
certain services, and The Limited desires to provide certain services, relating
to separate state, local and foreign taxes other than Federal Taxes and Combined
State Taxes; and
WHEREAS, The Limited and Abercrombie & Fitch desire to agree upon a
method for determining the financial consequences to each party and their
subsidiaries resulting from the filing of a consolidated federal income tax
return and the filing of returns relating to Combined State Taxes.
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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:
ARTICLE I
DEFINITIONS
1.1 Definitions. For purposes of this Agreement, the terms set forth below
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shall have the following meanings.
"Abercrombie & Fitch Combined State Tax Liability" shall mean, with
respect to any taxable year and any jurisdiction, an amount of Combined State
Taxes determined in accordance with the principles set forth in the definition
of Abercrombie & Fitch Federal Tax Liability; provided, however, that (i) the
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total amount of Combined State Taxes shall also include any actual income,
franchise or similar state or local tax liability (a "State Liability") owed in
a jurisdiction (a "Combined Jurisdiction") in which a member of the Abercrombie
& Fitch Group files tax returns with a member of The Limited Sub-Group, on a
consolidated, combined or unitary basis, to the extent such liability exceeds
the liability that would have been owed had no member of the Abercrombie & Fitch
Group been included in such returns; and (ii) the total amount of Combined State
Taxes shall be reduced to the extent that, in any Combined Jurisdiction, the
State Liability of the Limited Sub-Group is less than the liability that would
have been owed had no member of the Abercrombie & Fitch Group been included in
the returns of such Combined Jurisdiction.
"Abercrombie & Fitch Federal Tax Liability" shall mean, with respect
to any taxable year, the sum of the Abercrombie & Fitch Group's Federal Tax
liability and any interest, penalties and other additions to such taxes for such
taxable year, computed as if the Abercrombie & Fitch Group were not and never
were part of The Limited Group, but rather were a separate affiliated group of
corporations filing a consolidated federal income tax return pursuant to Section
1501 of the Code, provided, however, that transactions with members of The
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Limited Sub-Group shall be reflected according to the provisions of the
consolidated return regulations promulgated under the Code governing
intercompany transactions, and that Deconsolidation will trigger any deferred
amounts, excess loss accounts or similar items. Such computation shall be made
(A) without regard to the income, deductions (including net operating loss and
capital loss deductions) and credits in any year of any member of The Limited
Group that is not a member of the Abercrombie & Fitch Group, (B) by taking
account of any Tax Asset of the Abercrombie & Fitch Group in accordance with
Section 2.1(c)(iii) hereof, (C) with regard to net operating loss and capital
loss carryforwards and carrybacks and minimum tax credits
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from earlier years of the Abercrombie & Fitch Group, but without regard to any
such carryforward from a tax period (or portion thereof) ending on or before the
date of the Initial Public Offering and arising solely due to treating the
Abercrombie & Fitch Group as if it were never part of The Limited Group, (D) as
though the highest rate of tax specified in subsection (b) of Section 11 of the
Code (or any other similar rates applicable to specific types of income) were
the only rates set forth in that subsection, and with other similar adjustments
as described in Section 1561 of the Code, and (E) reflecting the positions,
elections and accounting methods used by The Limited in preparing the
consolidated federal income tax return for The Limited Group and (F) by not
permitting the Abercrombie & Fitch Group any compensation deductions arising in
respect of any exercise of options on Limited stock by any employee of the
Abercrombie & Fitch Group.
"Abercrombie & Fitch Group" shall mean, at any time, Abercrombie &
Fitch and any direct or indirect corporate subsidiaries of Abercrombie & Fitch
that would be eligible to join with Abercrombie & Fitch, with respect to Federal
Taxes, in the filing of a consolidated federal income tax return and, with
respect to Combined State Taxes, in the filing of a consolidated, combined or
unitary income or franchise tax return if Abercrombie & Fitch were not
consolidated, combined or filing on a unitary basis with any member of The
Limited Sub-Group.
"Combined State Tax" means, with respect to each state or local taxing
jurisdiction, any income, franchise or similar tax payable to such state or
local taxing jurisdiction in which a member of the Abercrombie & Fitch Group
files tax returns with a member of The Limited Sub-Group, on a consolidated,
combined or unitary basis for purposes of such income or franchise tax.
"Deconsolidation" means any event pursuant to which Abercrombie &
Fitch ceases to be a subsidiary corporation includible in a consolidated tax
return of The Limited Group for Federal Tax purposes.
"Federal Tax" means any tax imposed under Subtitle A of the Code.
"Final Determination" shall mean (i) with respect to Federal Taxes, a
"determination" as defined in Section 1313(a) of the Code or execution of an
Internal Revenue Service Form 870AD and, with respect to taxes other than
Federal Taxes, any final determination of liability in respect of a tax that,
under applicable law, is not subject to further appeal, review or modification
through proceedings or otherwise, (ii) any final disposition of a tax issue by
reason of the expiration of a statute of limitations or (iii) the payment of tax
by The Limited with respect to any item disallowed or adjusted by any taxing
authority where The Limited determines in good faith that no action should be
taken to recoup such payment.
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"Post-Deconsolidation Tax Period" means (i) any tax period beginning
and ending after the date of Deconsolidation and (ii) with respect to a tax
period that begins before and ends after the date of Deconsolidation, such
portion of the tax period that commences on the day immediately after the date
of Deconsolidation.
"Pre-Deconsolidation Tax Period" means (i) any tax period beginning
and ending before or on the date of Deconsolidation and (ii) with respect to a
period that begins before and ends after the date of Deconsolidation, such
portion of the tax period ending on and including the date of Deconsolidation.
"Tax Asset" means any net operating loss, net capital loss, investment
tax credit, foreign tax credit, charitable deduction or any other deduction,
credit or tax attribute which could reduce taxes (including, without limitation,
deductions and credits related to alternative minimum taxes).
"The Limited Group" shall mean, at any time, The Limited and each
direct and indirect corporate subsidiary eligible to join with The Limited in
the filing of a consolidated federal income tax return.
"The Limited Sub-Group" shall mean, at any time, The Limited and each
of its direct and indirect corporate subsidiaries other than those subsidiaries
that are members of the Abercrombie & Fitch Group.
1.2. Internal References. Unless the context indicates otherwise, references to
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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 II
TAX SHARING
2.1. Tax Sharing. (a) General. For each taxable year of The Limited Group
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during which income, loss, or credit against tax of the Abercrombie & Fitch
Group are includible in the consolidated Federal Tax return of The Limited
Group, Abercrombie & Fitch shall pay to The Limited an amount equal to the
Abercrombie & Fitch Federal Tax Liability and for each taxable period during
which income, loss or credit against tax of any member of the Abercrombie &
Fitch Group are includible in a return relating to a Combined State Tax,
Abercrombie & Fitch shall pay The Limited an amount equal to the Abercrombie &
Fitch Combined State Tax Liability for such taxable period, each as shown on the
Pro Forma Returns (as defined in paragraph (c) below).
(b) Estimated Payments. The Limited shall determine the amount of the
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estimated tax installment of the Abercrombie & Fitch Federal Tax Liability
(corresponding
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to The Limited's estimated Federal Tax installment), as determined under the
principles of Section 2.1(a) of this Agreement. Abercrombie & Fitch shall,
within 5 days of receipt of such determination (but in no event earlier than 5
days prior to the due date of The Limited's corresponding estimated tax
payment), pay to The Limited the amount so determined. The Limited shall
determine under provisions of applicable law the amount of the estimated tax
installment of the Abercrombie & Fitch Combined State Tax Liability
(corresponding to the relevant estimated Combined State Tax installment), as
determined under the principles of Section 2.1(a) of this Agreement. Abercrombie
& Fitch shall, within 5 days of receipt of such determination (but in no event
earlier than 5 days prior to the due date of The Limited's corresponding
estimated tax payment), pay to The Limited the amount so determined.
(c) Payment of Taxes at Year-End.
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(i) On or before the due date (including all applicable and valid
extensions) for The Limited Group's consolidated Federal Tax return, The Limited
shall make available to Abercrombie & Fitch a pro forma Federal Tax return (a
"Pro Forma Federal Return") of the Abercrombie & Fitch Group reflecting the
Abercrombie & Fitch Federal Tax Liability. On or before the due date for each
Combined State Tax return, The Limited shall make available to Abercrombie &
Fitch the relevant pro forma Combined State Tax return (each a "Pro Forma
Combined State Return" and together with the Pro Forma Federal Return, the "Pro
Forma Returns") of the Abercrombie & Fitch Group reflecting the relevant
Abercrombie & Fitch Combined State Tax Liability. The Pro Forma Returns shall
be prepared in good faith in a manner generally consistent with past practice.
(ii) On or before the date The Limited files its consolidated Federal
Tax return for any year for which payments are to be made under this Agreement,
Abercrombie & Fitch shall pay to The Limited, or The Limited shall pay to
Abercrombie & Fitch, as appropriate, an amount equal to the difference, if any,
between the Abercrombie & Fitch Federal Tax Liability reflected on the Pro Forma
Federal Return for such year and the aggregate amount of the estimated
installments of the Abercrombie & Fitch Federal Tax Liability for such year made
pursuant to Section 2.1(b). On or before the date The Limited files a Combined
State Tax return for any year for which payments are to be made under this
Agreement, Abercrombie & Fitch shall pay to The Limited, or The Limited shall
pay to Abercrombie & Fitch, as appropriate, an amount equal to the difference,
if any, between the Abercrombie & Fitch Combined State Tax Liability reflected
on the relevant Pro Forma Combined State Tax Return and the aggregate amount of
the estimated installments paid with respect to the corresponding Abercrombie &
Fitch Combined State Tax Liability pursuant to Section 2.1(b).
(iii) If a Pro Forma Return reflects a Tax Asset that may under
applicable law be used to reduce a Federal Tax or Combined State Tax liability
of any member of
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The Limited Sub-Group for any taxable period, The Limited shall pay to
Abercrombie & Fitch an amount equal to the actual tax saving (which would
include refunds actually received) produced by such Tax Asset at the time such
tax saving is realized and the future Pro Forma Returns of the Abercrombie &
Fitch Group shall be adjusted to reflect such use. The amount of any such tax
saving for any taxable period shall be the amount of the reduction in taxes
payable to a taxing authority with respect to such tax period as compared to the
taxes that would have been payable to a taxing authority with respect to such
tax period in the absence of such Tax Asset.
(iv) In the event that The Limited makes a cash deposit with a taxing
authority in order to stop the running of interest or makes a payment of tax and
correspondingly takes action to recoup such payment (such as suing for a
refund), Abercrombie & Fitch shall pay to The Limited an amount equal to
Abercrombie & Fitch' share of the amount so deposited or paid (calculated in a
manner consistent with the determinations provided in this Article 2). Upon
receipt by The Limited of a refund of any amounts paid by it in respect of which
Abercrombie & Fitch shall have advanced an amount hereunder, The Limited shall
pay to Abercrombie & Fitch the amount of such refund, together with any interest
received by it on such refund. If and to the extent that any claim for refund
or contest based thereupon shall be unsuccessful, the payment by Abercrombie &
Fitch under Section 2.1(c)(iv) shall be credited toward Abercrombie & Fitch'
obligations under this Section 2(c)(iv) and any other payment obligation of
Abercrombie & Fitch under Section 2(d) below.
(d) Treatment of Adjustments. If any adjustment is made in a Federal Tax
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return of The Limited Group or in a return relating to a Combined State Tax,
after the filing thereof, in which income or loss of the Abercrombie & Fitch
Group (or any member thereof) is included, then at the time of a Final
Determination of the adjustment, Abercrombie & Fitch shall pay to The Limited or
The Limited shall pay to Abercrombie & Fitch, as the case may be, the difference
between all payments actually made under Section 2.1 with respect to the taxable
year or period covered by such tax return and all payments that would have been
made under Section 2.1 taking such adjustment into account, together with any
penalties actually paid and interest for each day until the date of Final
Determination calculated at the rate determined, in the case of a payment by
Abercrombie & Fitch, under Section 6621(a)(2) of the Code and, in the case of a
payment by The Limited, under Section 6621(a)(1) of the Code.
(e) Preparation of Returns and Contests. So long as (i) The Limited Group
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elects to file consolidated Federal Tax returns as permitted by Section 1501 of
the Code or (ii) any Combined State Tax return is filed, The Limited shall
prepare and file such returns and any other returns, documents or statements
required to be filed with the Internal Revenue Service with respect to the
determination of the Federal Tax liability of The Limited Group and with the
appropriate taxing authorities with respect to the determination of a Combined
State Tax liability. With respect to such return preparation,
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The Limited shall act in good faith with regard to all members included in an
applicable return. The Limited shall have the right with respect to any
consolidated Federal Tax returns or returns relating to a Combined State Tax
that it has filed or will file to determine in good faith (i) the manner in
which such returns, documents or statements shall be prepared and filed,
including, without limitation, the manner in which any item of income, gain,
loss, deduction or credit shall be reported, (ii) whether any extensions should
be requested, and (iii) the elections that will be made by any member of The
Limited Group. In addition, The Limited shall have the right, in good faith, to
(i) contest, compromise or settle any adjustment or deficiency proposed,
asserted or assessed as a result of any audit of any Federal Tax return or
return relating to a Combined State Tax, (ii) file, prosecute, compromise or
settle any claim for refund, and (iii) determine whether any refunds shall be
received by way of refund or credited against tax liabilities. In addition, The
Limited shall prepare and file ruling requests, and take all other actions on
behalf of any member of The Limited Group that it deems appropriate in providing
tax services to the members of The Limited Group. The Limited shall, to the
extent such information is available, advise Abercrombie & Fitch of any
significant Abercrombie & Fitch tax issue being contested by the federal, state,
local or other relevant taxing authorities, and shall keep Abercrombie & Fitch
informed with respect to any contest, compromise or settlement thereof.
2.2 Reimbursement for Certain Services. The Limited shall provide services in
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connection with this Agreement, including but not limited to, (i) those services
relating to the preparation of returns (including Pro Forma Returns) described
in paragraphs 2.1(b), 2.1(c) and 2.1(e) and (ii) services relating to the other
activities described in paragraph 2.1(e). As compensation for these services,
Abercrombie & Fitch shall pay The Limited a fee calculated on a basis such that
The Limited is reimbursed for all direct and indirect costs and expenses
incurred with respect to Abercrombie & Fitch' share of the overall costs and
expenses incurred by The Limited with respect to tax related services. The
Limited shall calculate the fee payable, invoice Abercrombie & Fitch for the fee
and Abercrombie & Fitch will pay the invoiced amount in a manner consistent with
the invoice and payment procedures provided for in the "Intercompany Services
and Operating Agreement."
2.3 Additional Services. The Limited will provide the tax services described
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in this Article II with respect to all of the separate state, local and foreign
taxes of any members of the Abercrombie & Fitch Group that do not relate to
Federal Taxes or Combined State Taxes. The Limited will provide these services
in a manner consistent with the principles contained in Article II and be
compensated in the same manner as described in Section 2.2.
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ARTICLE III
POST-DECONSOLIDATION
3.1. Additional Rights and Liabilities Post-Deconsolidation.
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(a) Abercrombie & Fitch covenants that on or after a Deconsolidation it
will not, nor will it cause or permit any member of the Abercrombie & Fitch
Group to make or change any tax election, change any accounting method, amend
any tax return or take any tax position on any tax return, take any other
action, omit to take any action or enter into any transaction that results in
any increased tax liability or reduction of any Tax Asset of The Limited Group
or any member thereof (immediately after the Deconsolidation) in respect of any
Pre-Deconsolidation Tax Period, without first obtaining the written consent of
an authorized representative of The Limited.
(b) In the event of a Deconsolidation, The Limited may, at its option,
elect and Abercrombie & Fitch shall join The Limited in electing (if necessary),
(i) to reattribute to itself certain Tax Assets of the Abercrombie & Fitch Group
pursuant to Treasury Regulations Section 1.1502-20(g) and, if The Limited makes
such election, Abercrombie & Fitch shall comply with the requirements of
Treasury Regulations Section 1.1502-20(g)(5)) and (ii) to ratably allocate items
(other than extraordinary items) of the Abercrombie & Fitch Group in accordance
with relevant provisions of the Treasury Regulations Section 1.1502-76. If The
Limited elects to reattribute to itself any Tax Assets under clause (i) this
Section 3.1(b), The Limited shall pay Abercrombie & Fitch an amount equal to the
actual tax saving (which would include refunds actually received) produced by
such Tax Asset if and when such actual tax saving is realized.
(c) The Limited agrees to pay to Abercrombie & Fitch the actual tax benefit
received by The Limited Group from the use in any Pre-Deconsolidation Tax Period
of a carryback of any Tax Asset of the Abercrombie & Fitch Group from a Post-
Deconsolidation Tax Period. Such benefit shall be considered equal to the
excess of (i) the amount of Federal Taxes or Combined State Taxes, as the case
may be, that would have been payable by The Limited Group in the absence of such
carryback over (ii) the amount of Federal Taxes or Combined State Taxes, as the
case may be, actually payable by The Limited Group. Payment of the amount of
such benefit shall be made within 90 days of the filing of the applicable tax
return for the taxable year in which the Tax Asset is utilized. If, subsequent
to the payment by The Limited to Abercrombie & Fitch of any such amount, there
shall be (A) a Final Determination which results in a disallowance or a
reduction of the Tax Asset so carried back or (B) a reduction in the amount of
the benefit realized by The Limited Group as a result of any other Tax Asset
that arises in a Post-Deconsolidation Tax Period, Abercrombie & Fitch shall
repay to The Limited, within 90 days of such event described in (A) or (B) (an
"Event" or, collectively, the "Events") any amount which would not have been
payable to Abercrombie & Fitch pursuant to this Section 3.1(c) had the amount of
the benefit been determined in light of the Events.
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Abercrombie & Fitch shall hold The Limited harmless for any penalty or interest
payable by any member of The Limited Group, as a result of any Event. Any such
amount shall be paid by Abercrombie & Fitch to The Limited within 90 days of the
payment by The Limited or any member of The Limited Group of any such interest
or penalty. Nothing in this Section 3.1(c) shall require The Limited to file a
claim for refund of Federal Taxes or Combined State Taxes which The Limited, in
its sole discretion, determines lacks substantial authority, as defined in the
Code and the regulations thereunder.
ARTICLE IV
MISCELLANEOUS
4.1. Limitation of Liability. Neither The Limited nor Abercrombie & Fitch
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shall be liable to the other for any special, indirect, incidental or
consequential damages of the other arising in connection with this Agreement;
provided, however that in the event that (i) the Internal Revenue Service (or
other competent taxing authority) asserts a tax liability directly against
Abercrombie & Fitch or any member of the Abercrombie & Fitch Group, pursuant to
its authority under Treasury Regulation Section 1.1502-6 (or other relevant
statutory authority), (ii) Abercrombie & Fitch has made all payments and
performed all of its obligations otherwise required of it under this Agreement
with respect to such liability or otherwise, and (iii) The Limited was given the
opportunity to contest, settle or compromise such liability pursuant to Section
2.1(e) of this Agreement, then The Limited shall indemnify Abercrombie & Fitch
for actual payments made after a Final Determination with respect to such
liability to the extent that such payments exceed Abercrombie & Fitch' share of
such liability (calculated in a manner that avoids double-counting under this
Agreement), such share determined in accordance with Article II of this
Agreement.
4.2. Subsidiaries. (a) Performance. The Limited agrees and acknowledges that
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The Limited shall be responsible for the performance of the obligations of each
member of The Limited Sub-Group hereunder applicable to such subsidiary.
Abercrombie & Fitch agrees and acknowledges that Abercrombie & Fitch shall be
responsible for the performance by each member of the Abercrombie & Fitch Group
of the obligations hereunder applicable to such member.
(b) Application to Present and Future Subsidiaries. This Agreement is
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being entered into by The Limited and Abercrombie & Fitch on behalf of
themselves and each member of The Limited Sub-Group and Abercrombie & Fitch
Group, respectively. This Agreement shall constitute a direct obligation of
each such member and shall be deemed to have been readopted and affirmed on
behalf of any corporation which becomes a member of The Limited Sub-Group or
Abercrombie & Fitch Group in the future.
4.3. Cooperation. The Limited and Abercrombie & Fitch shall cooperate fully in
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the implementation of this Agreement, including but not limited to, providing
promptly to the
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requesting party such assistance and documentation as may be reasonably
requested by such party in connection with any of the activities described in
Article II or Article III. In addition, The Limited and Abercrombie & Fitch
shall retain all relevant tax records for relevant open periods in accordance
with past practice.
4.4. Agent. Each member of the Abercrombie & Fitch Group hereby irrevocably
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appoints The Limited as its agent and attorney-in-fact to take any action as The
Limited may deem necessary or appropriate to effect Section 2.1 including,
without limitation, those actions specified in Treasury Regulation Section
1.1502-77(a).
4.5. Amendments. This Agreement may not be amended or terminated orally, but
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only by a writing duly executed by or on behalf of the parties hereto. Any such
amendment shall be validly and sufficiently authorized for purposes of this
Agreement if it is signed on behalf of The Limited and Abercrombie & Fitch by
any of their respective presidents or vice presidents.
4.6. Term. Subject to Article III, this Agreement shall expire upon the date of
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Deconsolidation with respect to all Post-Deconsolidation periods; provided,
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however, that all rights and obligations arising hereunder with respect to a
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Pre-Deconsolidation Tax Period shall survive until they are fully effectuated or
performed and, provided, further, that notwithstanding anything in this
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Agreement to the contrary, all rights and obligations arising hereunder with
respect to a Post-Deconsolidation Tax Period shall remain in effect and its
provisions shall survive for the full period of all applicable statutes of
limitation (giving effect to any extension, waiver or mitigation thereof).
4.7. Effective Date. This Agreement shall be effective as of the date that the
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Initial Public Offering is consummated ("effective date"), shall govern all open
taxable periods and shall supersede all prior agreements as to the allocation of
federal income tax liability between the parties to this Agreement for all such
open taxable years and for all subsequent taxable years. As of the effective
date, all such prior agreements are hereby canceled with respect to members of
the Abercrombie & Fitch Group.
4.8. Severability. If any provision of this Agreement or the application of
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any such provision to any party or circumstances shall be determined by any
court of competent jurisdiction to be invalid, illegal or unenforceable to any
extent, the remainder of this Agreement or such provision or the application of
such provision to such party or circumstances, other than those to which it is
so determined to be invalid, illegal or unenforceable, shall remain in full
force and effect to the fullest extent permitted by law and shall not be
affected thereby, unless such a construction would be unreasonable.
4.9. Notices. All notices and other communications required or permitted
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hereunder shall be in writing, shall be deemed duly given upon actual receipt,
and shall be delivered (a) in person, (b) by registered or certified mail,
postage prepaid, return receipt requested, or (c)
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by facsimile or other generally accepted means of electronic transmission
(provided that a copy of any notice delivered pursuant to this clause (c) shall
also be sent pursuant to clause (b), addressed as follows:
(a) If to Abercrombie & Fitch, to:
Abercrombie & Fitch Co.
Three Limited Parkway
Columbus, OH 43230
Attention: Timothy B. Lyons
Fax: 614-479-7020
(b) If to The Limited, to:
The Limited, Inc.
Three Limited Parkway
Columbus, OH 43230
Attention: Timothy B. Lyons
Fax: 614-479-7020
or to such other addresses or telecopy numbers as may be specified by like
notice to the other parties.
4.10. Further Assurances. The Limited and Abercrombie & Fitch shall execute,
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acknowledge and deliver, or cause to be executed, acknowledged and delivered,
such instruments and take such other action as may be necessary or advisable to
carry out their obligations under this Agreement and under any exhibit, document
or other instrument delivered pursuant hereto.
4.11. Entire Agreement. This Agreement constitutes the entire understanding of
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the parties hereto with respect to the subject matter hereof.
4.12. Successors. This agreement shall be binding on and inure to the benefit
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of any successor, by merger, acquisition of assets or otherwise, to any of the
parties hereto (including but not limited to any successor of The Limited and
Abercrombie & Fitch succeeding to the tax attributes of such party under Section
381 of the Code), to the same extent as if such successor had been an original
party hereto.
4.13. Authorization, etc. Each of the parties hereto hereby represents and
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warrants that it has the power and authority to execute, deliver and perform
this Agreement, that this Agreement has been duly authorized by all necessary
corporate action on the part of such party that this Agreement constitutes a
legal, valid and binding obligation of each such party and that the execution,
delivery and performance of this Agreement by such party
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does not contravene or conflict with any provision of law or of its charter or
bylaws or any agreement, instrument or order binding on such party.
4.14. Section Captions. Section captions used in this Agreement are for
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convenience and reference only and shall not affect the construction of this
Agreement.
4.15. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
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ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO LAWS
AND PRINCIPLES RELATING TO CONFLICTS OF LAW.
4.16. Counterparts. This Agreement may be executed in any number of
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same Agreement.
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IN WITNESS WHEREOF, each of the parties hereto has caused this
agreement to be executed by a duly authorized officer as of the date first above
written.
ABERCROMBIE & FITCH CO.
By: /s/ Kenneth B. Gilman
_____________________________
Name: Kenneth B. Gilman
Title: Vice Chairman
THE LIMITED, INC.
By: /s/ Kenneth B. Gilman
_____________________________
Name: Kenneth B. Gilman
Title: Vice Chairman and Chief
Financial Officer
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