SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934
Date of Report (Date of earliest event reported)September 29,
1995
ANNTAYLOR, INC.
(Exact name of registrant as specified in its charter)
Delaware 1-11980 51-0297083
(State of other jurisdiction of (Commission
(I.R.S. Employer Identification Number)
incorporation) File Number)
142 West 57th Street, New York, NY 10019
(Address of principal executive offices) (Zip Code)
(212) 541-3300
(Registrant's telephone number, including area code)
N/A
(Former name or former address, if changed since last report)
ITEM 5. Other Events
On September 29, 1995, AnnTaylor, Inc. (the "Company") entered
into an amended and restated credit agreement to replace its
existing bank credit agreement. The amended and restated credit
agreement provides, among other things, for an additional $25
million of financing pursuant to a term loan, thereby increasing
the amounts available to the Company under the credit agreement
from $125 million to $150 million. The amended and restated credit
agreement contains financial and other covenants, including
limitations on indebtedness, liens and investments, restrictions on
dividends or other distributions to stockholders, and maintaining
certain financial ratios and specified levels of net worth, some of
which provisions were amended by the new agreement. The amended
and restated credit agreement also provides for, among other
things, a revised interest rate and the addition of a limitation on
capital expenditures. The Company's payment obligations under the
agreement are guaranteed by the Company's parent company, AnnTaylor
Stores Corporation ("ATSC"). A copy of the amended and restated
bank credit agreement and related agreements are filed as exhibits
to this Report. The foregoing summary of the amended and restated
bank credit agreement and related agreements is qualified in its
entirety by reference to such agreements.
ITEM 7. Financial Statements and Exhibits
The exhibits listed in the following exhibit index are filed
as part of this Report.
Exhibit No.
10.1 Amended and Restated Credit Agreement, dated as of
September 29, 1995, among the Company, Bank of America
National Trust and Savings Association ("Bank of
America"), Fleet Bank, National Association, as
Co-Agents, the financial institutions from time to time
party thereto, BA Securities, Inc., as Arranger, and
Bank of America, as Agent.
10.2 Amended and Restated Security and Pledge Agreement,
dated as of September 29, 1995, made by the Company in
favor of Bank of America, as Agent.
10.3 Trademark Security Agreement, dated as of September 29,
1995, made by the Company in favor of Bank of America,
as Agent.
10.4 Amended and Restated Guaranty, dated as of September
29, 1995, made by ATSC in favor of Bank of America, as
Agent.
10.5 Amended and Restated Security and Pledge Agreement,
dated as of September 29, 1995, made by ATSC in favor
of Bank of America, as Agent.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned hereunto duly authorized.
AnnTaylor, Inc.
Date: October 17, 1995
By: /s/ Walter J. Parks
Walter J. Parks
Senior Vice President -
Finance
098888\0048\00067\959MAQA5.AGR
098888\0048\00067\959MAQA5.AGR
CONFORMED COPY
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of September 29, 1995
among
ANNTAYLOR, INC.,
as Borrower
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
FLEET BANK, NATIONAL ASSOCIATION,
as Co-Agents
THE FINANCIAL INSTITUTIONS
FROM TIME TO TIME PARTY HERETO
BA SECURITIES, INC.
as Arranger
and
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent
$150,000,000
TABLE OF CONTENTS
ARTICLE I
Definitions 1
1.01. Certain Defined Terms 1
1.02. Computation of Time Periods 23
1.03. Accounting Terms 23
1.04. Other Definitional Provisions 23
ARTICLE II
Amounts and Terms of Loans 23
2.01. The Term Loan Facility 23
(a) Amount of the Term Loan 23
(b) Notice of Borrowing 24
(c) Making of Loans 24
(d) Amount of Term Loans 24
(e) Loan Accounts; Term Notes 25
(f) Repayment of Term Loans 25
(g) No Change of Term Loan Provisions 25
2.02. The Revolving Loan Facility 25
(a) Availability 25
(b) Notice of Borrowing 26
(c) Making of Loans 27
(d) Loan Accounts 27
(e) Termination or Reduction of Revolving Loan
Commitments 27
(f) Extension of Revolving Loan Commitments 28
(g) Repayment of Revolving Loans 28
2.03. Interest on the Loans 28
(a) Rate of Interest 28
(b) Interest Payments 30
(c) Conversion or Continuation 30
(d) Default Interest 31
(e) Computation of Interest 31
(f) Changes; Legal Restrictions 31
2.04. Fees 32
(a) Fees to Bank of America 32
(b) Commitment Fee 32
(c) Agency Fee 33
(d) Letter of Credit Fees 33
(e) Amendment Fee 33
(f) Payment of Fees 33
2.05. Prepayments 34
(a) Voluntary Prepayments 34
(b) Mandatory Commitment Reductions; Mandatory
Prepayments 34
(c) Treatment of Term Loans 35
2.06. Payments 36
(a) Manner and Time of Payment 36
(b) Apportionment of Payments 36
(c) Payments on Non-Business Days 37
(d) Payments by Lenders to the Agent 38
2.07. Interest Periods 38
2.08. Special Provisions Governing Eurodollar Rate
Loans 39
(a) Determination of Interest Rate 39
(b) Interest Rate Unascertainable, Inadequate or
Unfair 39
(c) Illegality 39
(d) Compensation 40
(e) Quotation of Eurodollar Rate 41
(f) Booking of Eurodollar Rate Loans 41
2.09. Taxes 41
2.10. Increased Capital 44
2.11. Use of Proceeds of the Loans 45
2.12. Authorized Officers of the Borrower 45
2.13. Replacement of Lender in Event of Adverse
Condition 45
ARTICLE III
Letters of Credit 46
3.01. Obligation to Issue 46
3.02. Types and Amounts 46
3.03. Conditions 47
3.04. Issuance of Letters of Credit 47
3.05. Reimbursement Obligations; Duties of the
Issuing Bank 49
3.06. Participations 51
3.07. Payment of Reimbursement Obligations 52
3.08. Compensation for Letters of Credit 53
(a) Letter of Credit Fees 53
(b) Issuing Bank Charges 54
3.09. Indemnification; Exoneration 54
ARTICLE IV
Conditions To Loans and Letters of Credit 55
4.01. Conditions Precedent to the Initial Funding 55
(a) Certain Documents and Other Items 55
(b) Fees and Expenses Paid 57
4.02. Conditions Precedent to all Loans and Letters
of Credit 57
(a) Notice of Borrowing 57
(b) Additional Matters 57
(c) Supplemental Documentation 58
ARTICLE V
Representations and Warranties 58
5.01. Representations and Warranties on the Initial
Funding Date 58
(a) Organization; Corporate Powers 58
(b) Authority 59
(c) No Conflict 59
(d) Governmental Consents 60
(e) Governmental Regulation 60
(f) Financial Position 60
(g) Permitted Indebtedness 60
(h) Litigation; Adverse Effects 60
(i) No Material Adverse Change 61
(j) Payment of Taxes 61
(k) Material Adverse Agreements 61
(l) Securities Activities 61
(m) Disclosure 61
(n) Patents, Trademarks, Permits, Etc 62
(o) Environmental Matters 62
(p) ERISA 62
(q) Net Worth 63
5.02. Subsequent Funding Representations and
Warranties 63
ARTICLE VI
Reporting Covenants 63
6.01. Financial Statements 63
ARTICLE VII
Affirmative Covenants 66
7.01. Corporate Existence, Etc 66
7.02. Corporate Powers, Etc 67
7.03. Compliance with Laws 67
7.04. Payment of Taxes and Claims 67
7.05. Maintenance of Properties; Insurance 67
7.06. Inspection of Property; Books and Records;
Discussions 67
7.07. Labor Matters 68
7.08. Maintenance of Permits 68
7.09. ERISA 68
7.10. Distribution Center Financing; Lease
Financing 68
7.11. UCC Searches 69
ARTICLE VIII
Negative Covenants 69
8.01. Indebtedness 69
8.02. Sales of Assets; Liens 70
(a) Sales 70
(b) Liens 71
8.03. Investments 71
8.04. Accommodation Obligations 72
8.05. Restricted Payments 73
8.06. Conduct of Business 73
8.07. Transactions with Affiliates 74
8.08. Restriction on Fundamental Changes 74
8.09. ERISA 74
8.10. Sales and Leasebacks 75
8.11. Subordinated Indebtedness 75
(a) No Change 75
(b) Notices 76
8.12. Margin Regulations 76
8.13. Change of Fiscal Year 76
8.14. Subsidiaries 76
8.15. Capital Expenditures 76
ARTICLE IX
Financial Covenants 77
9.01. Minimum Net Worth 77
9.02. Funded Debt to Total Capitalization Ratio 78
9.03. Minimum Fixed Charge Coverage Ratio 78
ARTICLE X
Events of Default; Right and Remedies 78
10.01. Events of Default 78
(a) Failure to Make Payments When Due 78
(b) Breach of Certain Covenants 78
(c) Breach of Representation or Warranty 79
(d) Other Defaults 79
(e) Default as to Other Indebtedness 79
(f) Involuntary Bankruptcy; Appointment of Receiver,
Etc 79
(g) Voluntary Bankruptcy; Appointment of Receiver, Etc
80
(h) Judgments and Attachments 80
(i) Dissolution 80
(j) Collateral Documents; Failure of Security or
Subordination 80
(k) Change in Control 81
(l) ERISA Liabilities 81
10.02. Rights and Remedies 81
(a) Acceleration 81
(b) Deposit for Letters of Credit 81
(c) Rescission 82
ARTICLE XI
The Agent 82
11.01. Appointment and Authorization 82
11.02. Delegation of Duties 83
11.03. Liability of Agent 83
11.04. Reliance by Agent 83
11.05. Notice of Default 84
11.06. Credit Decision 84
11.07. Indemnification 85
11.08. Agent in Individual Capacity 85
11.09. Successor Agent 86
11.10. The Arranger 86
11.11. Co-Agents 86
11.12. Collateral Matters 86
11.13. Relations Among Lenders 87
ARTICLE XII
Miscellaneous 87
12.01. Assignments and Participations 87
12.02. Assignments to Federal Reserve Banks 91
12.03. Expenses 92
(a) Generally 92
(b) After Default 92
12.04. Indemnity 92
12.05. Change in Accounting Principles 93
12.06. Setoff 94
12.07. Ratable Sharing 94
12.08. Amendments and Waivers 95
12.09. Independence of Covenants 96
12.10. Notices 96
12.11. Survival of Warranties and Agreements 97
12.12. Failure or Indulgence Not Waiver; Remedies
Cumulative 97
12.13. Marshalling; Recourse to Security; Payments
Set Aside 97
12.14. Severability 97
12.15. Headings 97
12.16. Governing Law 97
12.17. Successors and Assigns 97
12.18. Consent to Jurisdiction and Service of
Process; Waiver of Jury Trial 98
12.19. Effect of Amendment and Restatement 98
12.20. Counterparts; Effectiveness; Inconsistencies 99
EXHIBITS
Exhibit 2.01 -- Form of Notice of Borrowing
Exhibit 2.01(e) -- Form of Term Note
Exhibit 2.03 -- Form of Notice of Conversion/
Continuation
Exhibit 4.01(a)(iii) (A) -- Form of Borrower Pledge Agreement
Exhibit 4.01(a)(iii)(B) -- Form of Trademark Assignment
Exhibit 4.01(a)(iv) -- Form of ATSC Guaranty
Exhibit 4.01(a)(v) -- Form of ATSC Pledge Agreement
Exhibit 4.01(a)(x) -- Form of Opinion of Skadden, Arps,
Slate, Meagher & Flom
Exhibit 6.01(d)(i) -- Form of Compliance Certificate
Exhibit 6.01(d)(ii) -- Form of Pricing Ratio Certificate
Exhibit 12.01 -- Form of Assignment and Acceptance
SCHEDULES
Schedule 1.01(a) -- Lending Offices
Schedule 1.01(b) -- Commitments
Schedule 3.01 -- Existing Letters of Credit
Schedule 4.01 -- UCC Filing Jurisdictions
Schedule 8.02(b) -- Permitted Existing Liens
AMENDED AND RESTATED CREDIT AGREEMENT
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of
September 29, 1995 (as amended, supplemented or modified from
time to time, this "Agreement"), among ANNTAYLOR, INC., a
Delaware corporation (the "Borrower"), BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION and FLEET BANK, NATIONAL
ASSOCIATION, as Co-Agents (the "Co-Agents") and each other Person
signatory hereto as a Lender or which from time to time becomes a
Lender party hereto in accordance with Section 12.01(a) (together
with its respective successors and assigns, individually, a
"Lender" and, collectively, the "Lenders"), BA SECURITIES, INC.,
as Arranger (the "Arranger") and BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION in its separate capacity as
administrative agent for the Lenders hereunder (in such capacity,
the "Agent").
W I T N E S S E T H:
WHEREAS, the parties hereto wish to amend and restate
the Existing Credit Agreement;
NOW, THEREFORE, the parties hereto hereby agree that on
the Initial Funding Date, the Existing Credit Agreement will be
amended and restated in its entirety as follows:
ARTICLE I
Definitions
1.01. Certain Defined Terms.
The following terms used in this Agreement shall have the
following meanings (such meanings to be applicable, except to the
extent otherwise indicated in a definition of a particular term,
both to the singular and the plural forms of the terms defined):
"Accommodation Obligation", as applied to any Person,
shall mean any contractual obligation, contingent or otherwise,
of that Person with respect to any Indebtedness or other
obligation or liability of another, including any such
Indebtedness, obligation or liability directly or indirectly
guaranteed, endorsed (otherwise than for collection or deposit in
the ordinary course of business), co-made or discounted or sold
with recourse by that Person, or in respect of which that Person
is otherwise directly or indirectly liable, including Contractual
Obligations (contingent or otherwise) arising through any
agreement to purchase, repurchase, or otherwise acquire such
Indebtedness, obligation or liability or any security therefor,
or to provide funds for the payment or discharge thereof (whether
in the form of loans, advances, stock purchases, capital
contributions or otherwise), or to maintain solvency, assets,
level of income, or other financial condition, or to make payment
other than for value received.
"Affiliate", as applied to any Person, shall mean any
other Person directly or indirectly controlling, controlled by,
or under common control with, that Person. For purposes of this
definition, "control" (including, with correlative meanings, the
terms "controlling", "controlled by" and "under common control
with), as applied to any Person, means the possession, directly
or indirectly, of the power to vote 5% or more of the Securities
having voting power for the election of directors of such Person
or otherwise to direct or cause the direction of the management
and policies of that Person, whether through the ownership of
voting Securities or by contract or otherwise; provided that no
financial institution, mutual fund or investment banking firm
shall be an Affiliate of the Borrower unless it owns, directly or
indirectly, at least 20% of such Securities of the Borrower.
"Agent" shall have the meaning ascribed to such term in
the preamble and shall include any successor Agent appointed
pursuant to Section 11.09.
"Agent-Related Person" shall mean Bank of America and
any successor agent pursuant to Section 11.09, together with
their respective Affiliates, and the officers, directors,
employees, agents and attorneys-in-fact of such Persons and
Affiliates.
"Agent's Payment Office" shall mean the address for
payments set forth on the signature page hereto relating to the
Agent or such other address as the Agent may from time to time
specify in accordance with Section 12.10.
"Agreement" shall have the meaning ascribed to such
term in the preamble hereto.
"Applicable Lending Office" shall mean, with respect to
each Lender, such Lender's Domestic Lending Office, in the case
of a Base Rate Loan, and such Lender's Eurodollar Lending Office,
in the case of a Eurodollar Rate Loan.
"Arranger" shall have the meaning ascribed to such term
in the preamble.
"Assignment and Acceptance" shall mean an Assignment
and Acceptance in the form of Exhibit 12.01 (with blanks appropri
ately filled in) delivered to the Agent and the Borrower in
connection with an assignment of a Lender's interest under this
Agreement pursuant to Section 12.01.
"ATSC" shall mean AnnTaylor Stores Corporation, a
Delaware corporation.
"ATSC Guaranty" shall mean the Amended and Restated
Guaranty dated as of the Initial Funding Date substantially in
the form of, and on the terms set forth in, Exhibit 4.01(a)(iv),
as the same may be amended, supplemented or otherwise modified
from time to time.
"ATSC Pledge Agreement" shall mean the Amended and
Restated Security and Pledge Agreement dated as of the Initial
Funding Date substantially in the form of, and on the terms set
forth in, Exhibit 4.01(a)(v), as the same may be amended,
modified or otherwise modified from time to time.
"Bank of America" shall mean Bank of America National
Trust and Savings Association, a national banking association.
"Bankruptcy Code" shall mean Title 11 of the United
States Code (11 U.S.C 101 et seq.), as amended from time to
time, or any successor statute.
"Base Rate" shall mean, for any day a fluctuating
interest rate per annum equal to the higher of (a) the Reference
Rate in effect on such day and (b) the sum of the Federal Funds
Rate plus 0.50%.
"Base Rate Loans" shall mean all Loans outstanding
which bear interest at a rate determined by reference to the Base
Rate as provided in Section 2.03.
"Benefit Plan" shall mean a defined benefit plan as
defined in Section 3(35) of ERISA (other than a Multiemployer
Plan) in respect of which the Borrower or an ERISA Affiliate is,
or within the immediately preceding six years was, an "employer"
as defined in Section 3(5) of ERISA.
"Borrower" shall have the meaning ascribed to such term
in the preamble hereto.
"Borrower Pledge Agreement" shall mean the Amended and
Restated Security and Pledge Agreement dated as of the Initial
Funding Date substantially in the form of, and on the terms set
forth in, Exhibit 4.01(iii)(A), as the same may be amended,
supplemented or otherwise modified from time to time.
"Borrowing" shall mean, except as otherwise provided in
Section 2.08(c)(ii), a borrowing consisting of Loans of the same
type, having the same Interest Period and made on the same day by
the Revolving Loan Lenders or the Term Loan Lenders, as the case
may be.
"Business Day" shall mean (a) for all purposes other
than as covered by clause (b) below, any day excluding Saturday,
Sunday and any day which is a legal holiday under the laws of the
State of New York or the State of California, or is a day on
which banking institutions located in either of those states are
required or authorized by law or other governmental action to
close and (b) with respect to all notices, determinations,
fundings and payments in connection with the Eurodollar Rate, any
day which is a Business Day described in clause (a) and which is
also a day for trading by and between banks in the London
interbank market.
"Capital Expenditures" shall mean, for any period, on a
consolidated basis for the Borrower and its Restricted
Subsidiaries, the aggregate of all expenditures (whether paid in
cash or accrued as liabilities during that period and including
that portion of Capital Leases (except any capitalized interest)
which is capitalized on the consolidated balance sheet of the
Borrower and its Restricted Subsidiaries) made by the Borrower or
any Restricted Subsidiary during such period that, in conformity
with GAAP, are required to be included in or reflected by
property, plant or equipment, licenses and permits, or other
similar fixed asset accounts as reflected in such balance sheet
(including expenditures for equipment purchased simultaneously
with the tradein of existing equipment owned by the Borrower or
any such Restricted Subsidiary to the extent the gross amount of
such purchase price exceeds the book value of the equipment being
traded in, but excluding expenditures made in connection with the
replacement or restoration of assets, to the extent reimbursed or
financed from insurance proceeds or condemnation awards).
"Capital Lease", as applied to any Person, shall mean
any lease of any property (whether real, personal, or mixed) by
that Person as lessee which, in conformity with GAAP, is
accounted for as a capital lease on the balance sheet of that
Person.
"Cash Equivalents" shall mean (a) marketable direct
obligations issued or unconditionally guaranteed by the United
States Government or issued by an agency thereof and backed by
the full faith and credit of the United States of America, in
each case maturing within one year after the date of acquisition
thereof; (b) marketable direct obligations issued by any state of
the United States of America or any political subdivision of any
such state or any public instrumentality thereof maturing within
90 days after the date of acquisition thereof and, at the time of
acquisition, having one of the two highest ratings obtainable
from either S&P or Moody's (or, if at any time neither S&P nor
Moody's shall be rating such obligations, then from such other
nationally recognized rating services acceptable to the Requisite
Lenders) and not listed in Credit Watch published by S&P; (c)
commercial paper, other than commercial paper issued by the
Borrower or any Subsidiary of the Borrower or any of their
Affiliates, maturing no more than 90 days after the date of
creation thereof and, at the time of acquisition, having a rating
of at least A-1 or P-1 from either S&P or Moody's (or, if at any
time neither S&P nor Moody's shall be rating such obligations,
then the highest rating from other nationally recognized rating
services acceptable to the Requisite Lenders); and (d) domestic
and Eurodollar certificates of deposit or time deposits or
bankers' acceptances maturing within 90 days after the date of
acquisition thereof issued by any commercial bank organized under
the laws of the United States of America or any state thereof or
the District of Columbia having combined capital and surplus of
not less than $500,000,000.
"Cash Interest Expense" shall mean, for any period, all
Interest Expense for such period payable in cash.
"CAT Joint Venture" shall mean the joint venture
entered into between the Borrower, Cygne Designs, Inc., Cygne
Design F.E., Limited, CAT US Inc. and C.A.T. (Far East) Ltd. in
accordance with the CAT Joint Venture Agreement.
"CAT Joint Venture Agreement" shall mean (a) the
agreement dated July 13, 1993 among the Borrower, Cygne Designs,
Inc., Cygne Design F.E., Limited, CAT US Inc. and C.A.T. (Far
East) Ltd., as from time to time amended or modified and (b) any
agreement related to the CAT Joint Venture replacing the
agreement referred to in clause (a).
"Change in Control" shall have the meaning ascribed to
such term in the Subordinated Note Indenture.
"Claim" shall mean any claim or demand, by any Person,
of whatsoever kind or nature for any actual or alleged
Liabilities and Costs, whether based in contract, tort, implied
or express warranty, strict liability, criminal or civil statute,
Permit, ordinance or regulation, common law or otherwise.
"Cleandown Period" shall have the meaning ascribed to
such term in Section 2.02(a)(v).
"Cleandown" shall have the meaning ascribed to such
term in Section 2.02(a)(v).
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
"Collateral" shall mean all property and interests in
property now owned or hereafter acquired in or upon which a
security interest, pledge, lien or mortgage is granted or of
which a collateral assignment is made under the Collateral
Documents.
"Collateral Documents" shall mean the ATSC Guaranty,
the ATSC Pledge Agreement, the Borrower Pledge Agreement and the
Trademark Assignment, any mortgage delivered pursuant to Section
7.10, and any other document creating in favor of the Agent a
security interest in any property as security for the
Obligations, as any of the foregoing may be amended, supplemented
or otherwise modified from time to time.
"Commercial Letter of Credit" shall mean any Letter of
Credit which is drawable upon presentation of documents
evidencing the sale or shipment of goods purchased by the
Borrower in the ordinary course of its business.
"Commission" shall mean the Securities and Exchange
Commission.
"Commitment" shall mean, with respect to each Lender as
the context may require, (a) the amount set out opposite such
Lender's name under the heading "Total Commitment" in Schedule
1.01(b) or assigned to it in accordance with Section 12.01(a), as
such amount may be reduced or otherwise adjusted from time to
time pursuant to the terms of this Agreement or (b) the
obligation of such Lender to make Loans hereunder and participate
in Letters of Credit up to the amount specified in the
immediately preceding clause (a), and "Commitments" shall mean
the aggregate amount of the Commitments of all Lenders.
"Commitment Letter" shall mean the letter dated
September 19, 1995 from Bank of America and the Arranger to the
Borrower.
"Common Stock" shall mean the common stock of ATSC the
par value of which is set forth in ATSC Certificate of Incorpora
tion, as such certificate may be amended, restated or otherwise
modified from time to time.
"Compliance Certificate" shall mean a certificate in
substantially the form of Exhibit 6.01(d)(i) delivered to the
Agent by Borrower pursuant to Section 6.01(d)(i) and covering the
Borrower's compliance with the covenants contained in Article IX
and certain of the covenants contained in Article VIII.
"Contaminant" shall mean any pollutant, hazardous
substance, hazardous chemical, toxic substance, hazardous waste
or special waste, as those terms are defined in federal, state or
local laws and regulations, radioactive material, petroleum,
including crude oil or any petroleum-derived substance, or
breakdown or decomposition product thereof, or any constituent of
any such substance or waste, including polychlorinated biphenyls
and asbestos.
"Contractual Obligation", as applied to any Person,
shall mean any provision of any Securities issued by that Person
or any indenture, mortgage, deed of trust, contract, undertaking,
document, instrument or other agreement or instrument to which
that Person is a party or by which it or any of its properties is
bound, or to which it or any of its properties is subject
(including any restrictive covenant affecting such Person or any
of its properties).
"Credit Facility" shall mean the loan and letter of
credit facility provided to the Borrower pursuant to this
Agreement.
"Current Assets" shall mean, as at any date of
determination, the consolidated assets of the Borrower and its
Restricted Subsidiaries which may properly be classified as
current assets in conformity with GAAP.
"Current Liabilities" shall mean, as at any date of
determination, the consolidated liabilities of the Borrower and
its Restricted Subsidiaries which may properly be classified as
current liabilities in conformity with GAAP.
"Customary Permitted Liens" shall mean
(a) Liens (other than Environmental Liens and any
Lien imposed under ERISA) for claims, taxes, assessments or
charges of any Governmental Authority not yet due or which are
being contested in good faith by appropriate proceedings and with
respect to which adequate reserves or other appropriate
provisions are being maintained in accordance with GAAP;
(b) statutory Liens of landlords, bankers, carriers,
warehousemen, mechanics, materialmen and other Liens (other than
any Lien imposed under ERISA or any Environmental Lien) imposed
by law, arising in the ordinary course of business and for
amounts which (i) are not yet due, (ii) are not more than 30 days
past due as long as no notice of default has been given or other
action taken to enforce such Liens, or (iii)(A) are not more than
30 days past due and a notice of default has been given or other
action taken to enforce such Liens, or (B) are more than 30 days
past due, and, in the case of clause (A) or (B), are being
contested in good faith by appropriate proceedings which are
sufficient to prevent imminent foreclosure of such Liens and with
respect to which adequate reserves or other appropriate
provisions are being maintained in accordance with GAAP;
(c) Liens (other than any Lien imposed under ERISA or
any Environmental Lien) incurred or deposits made in the ordinary
course of business (including surety bonds and appeal bonds) in
connection with workers' compensation, unemployment insurance and
other types of employment benefits or to secure the performance
of tenders, bids, leases, contracts (other than for the repayment
of Indebtedness), statutory obligations and other similar
obligations or arising as a result of progress payments under
government contracts;
(d) easements (including reciprocal easement
agreements and utility agreements), rights-of-way, covenants,
consents, rights of landlords, reservations, encroachments,
variations and other restrictions, charges or encumbrances
(whether or not recorded) affecting the use of real property,
which do not materially interfere with the ordinary conduct of
the business of the Borrower; and
(e) Liens in favor of customs and revenue authorities
arising as a matter of law to secure payment of customs duties in
connection with the importation of goods.
"Distribution Center" shall mean the new distribution
center, fulfillment facility and related systems and equipment,
to be built, purchased or leased by the Borrower for the purpose
of replacing the Borrower's existing distribution facilities.
"Distribution Center Financing" shall mean a financing
transaction in which the Borrower or any Restricted Subsidiary
shall incur Indebtedness secured by a mortgage on the
Distribution Center and shall receive at least $5,000,000 in cash
proceeds of such Indebtedness.
"DOL" shall mean the United States Department of Labor
and any successor department or agency.
"Dollars" and "$" shall mean the lawful money of the
United States of America.
"Domestic Lending Office" means, with respect to any
Lender, the office of such Lender specified as its "Domestic
Lending Office" in Schedule 1.01(a) or on the Assignment and
Acceptance by which it became a Lender or such other office of
such Lender as such Lender may from time to time specify to the
Borrower and the Agent.
"EBITDA" shall mean, for any period, the sum of the
amounts for such period, of (a) Net Income, plus (b) to the
extent Net Income is reduced thereby (i) all charges for
amortization of intangibles and depreciation, (ii) Interest
Expense, (iii) income tax expense and (iv) extraordinary losses,
minus (c) extraordinary gains (net of taxes).
"Eligible Assignee" means (a) a commercial bank
organized under the laws of the United States, or any state
thereof, and having a combined capital and surplus of at least
$100,000,000; (b) a commercial bank organized under the laws of
any other country which is a member of the Organization for
Economic Cooperation and Development (the "OECD"), or a political
subdivision of any such country, and having a combined capital
and surplus of at least $100,000,000, provided that such bank is
acting through a branch or agency located in the United States of
America; (c) a Person that is primarily engaged in the business
of commercial banking and that is (i) a Subsidiary of a Lender,
(ii) a Subsidiary of a Person of which a Lender is a Subsidiary,
or (iii) a Person of which a Lender is a Subsidiary; and (d) any
Person that in the ordinary course of business extends credit or
purchases loans of a character substantially similar to the
Loans.
"Environmental Lien" shall mean a Lien in favor of any
Governmental Authority for (a) any liability of the Borrower or
any Subsidiary of the Borrower under federal or state
environmental laws or regulations, or (b) damages arising from,
or costs incurred by such Governmental Authority in response to,
a Release or threatened Release of a Contaminant into the
environment.
"ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as amended from time to time, and any
successor statute.
"ERISA Affiliate" shall mean any (a) corporation which
is a member of the same controlled group of corporations (within
the meaning of Section 414(b) of the IRC) as the Borrower or any
of its Subsidiaries, (b) partnership or other trade or business
(whether or not incorporated) under common control (within the
meaning of Section 414(c) of the IRC) with the Borrower or any of
its Subsidiaries, and (c) member of the same affiliated service
group (within the meaning of Section 414(m) of the IRC) as the
Borrower or any of its Subsidiaries, any corporation described in
clause (a) above or any partnership or trade or business
described in clause (b) above.
"Eurodollar Lending Office" means, with respect to any
Lender, the office of such Lender specified as its "Eurodollar
Lending Office" in Schedule 1.01(a) or on the Assignment and
Acceptance by which it became a Lender (or, if no such office is
specified, its Domestic Lending Office) or such other office of
such Lender as such Lender may from time to time specify by
written notice to the Borrower and the Agent.
"Eurodollar Rate" shall mean, with respect to any
Interest Period applicable to a Borrowing of Eurodollar Rate
Loans, an interest rate per annum obtained by dividing (a) the
rate of interest notified to the Agent by the Reference Bank at
which deposits in Dollars for such Interest Period would be
offered by the Reference Bank to major banks in the London
eurodollar interbank market at approximately 11:00 a.m. (London
time) on the second Business Day prior to the commencement of
such Interest Period, by (b) a percentage equal to 1 minus the
Eurodollar Reserve Percentage.
"Eurodollar Rate Loans" shall mean those Loans
outstanding which bear interest at a rate determined by reference
to the Eurodollar Rate as provided in Section 2.03.
"Eurodollar Reserve Percentage" shall mean with respect
to any Interest Period for any Eurodollar Rate Loan, that percent
age (expressed as a decimal rounded upwards to the nearest
1/100%) which is in effect on the date the Eurodollar Rate for
such Interest Period is determined as prescribed by the Federal
Reserve Board, for determining the maximum reserve requirement
(including any emergency, supplemental or other marginal reserve
requirement) for a member bank of the Federal Reserve System with
deposits exceeding $5,000,000,000 in respect of "Eurocurrency
liabilities" having a term equal to such Interest Period (or in
respect of any other category of liabilities which includes
deposits by reference to which the interest rate on Eurodollar
Rate Loans is determined or any category of extensions of credit
or other assets which includes loans by a non-United States
office of any bank to United States residents).
"Event of Default" shall mean any of the occurrences
set forth in Section 10.01 after the expiration of any applicable
grace period expressly provided therein.
"Existing Credit Agreement" means the Credit Agreement
dated as of July 29, 1994 among AnnTaylor, Inc., Bank of America
and Fleet Bank, National Association, as Co-Agents, BA
Securities, Inc., as Arranger, Bank of America, as Agent, and the
financial institutions party thereto, as amended.
"Existing Letter of Credit" shall mean each Letter of
Credit identified in Schedule 3.01.
"FDIC" shall mean the Federal Deposit Insurance
Corporation or any successor thereto.
"Federal Funds Rate" shall mean, for any day, the rate
set forth in the weekly statistical release designated as
H.15(519), or any successor publication, published by the Federal
Reserve Board (including any such successor, "H.15(519)") for
such day opposite the caption "Federal Funds (Effective)". If on
any relevant day such rate is not yet published in H.15(519), the
rate for such day will be the rate set forth in the daily
statistical release designated as the Composite 3:30 p.m.
Quotations for U.S. Government Securities, or any successor
publication, published by the Federal Reserve Bank of New York
(including any such successor, the "Composite 3:30 p.m.
Quotation") for such day under the caption "Federal Funds
Effective Rate". If on any relevant day the appropriate rate for
such previous day is not yet published in either H.15(519) or the
Composite 3:30 p.m. Quotations, the rate for such day will be the
arithmetic mean as determined by the Agent of the rates for the
last transaction in overnight Federal funds arranged prior to
9:00 a.m. (New York time) on that day by each of three leading
brokers of Federal funds transactions in New York City selected
by the Agent.
"Federal Reserve Board" shall mean the Board of Gover
nors of the Federal Reserve System or any Governmental Authority
succeeding to its functions.
"Fee Letter" shall mean the fee letter dated
September 19, 1995 between the Borrower and Bank of America.
"Final Maturity Date" shall mean July 29, 1998, as such
date may be extended pursuant to Section 2.02(f).
"Fiscal Year" shall mean the fiscal year of the
Borrower, which shall be the twelve-month period ending on the
Saturday closest to January 31 in each year or such other period
as the Borrower may designate and the Requisite Lenders may
approve in writing. A Fiscal Year ending in January or February,
as the case may be, of any calendar year shall have the numerical
designation of the prior calendar year.
"Fixed Charge Coverage Ratio" shall mean, for any
period, the quotient obtained by dividing (a) EBITDA by (b) the
sum of (i) Capital Expenditures paid or payable during such
period, plus (ii) scheduled payments made during such period for
principal on Indebtedness excluding any payment made upon
termination of a Receivables Transaction plus (iii) Cash Interest
Expense during such period plus (iv) income tax expense during
such period.
"Funded Debt" shall mean, as at any date of determina
tion, all Indebtedness then outstanding (a) for the principal of
Loans under this Agreement and (b) for money borrowed or under
any debt Securities issued by ATSC, the Borrower or any
Restricted Subsidiary (whether or not subordinated, and
specifically including the Subordinated Notes).
"Funding Date" shall mean the date of borrowing any
Loan.
"GAAP" shall mean generally accepted accounting princi
ples set forth in the opinions and pronouncements of the
Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board, or in such other
statements by such other entity as may be in general use by
significant segments of the accounting profession, which are
applicable to the circumstances as of the date of determination.
"Governmental Authority" shall mean any nation, state,
sovereign, or government, any federal, regional, state, local or
political subdivision and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of
or pertaining to government.
"Indebtedness", as applied to any Person, shall mean
any obligation for the payment of money which is a Contractual
Obligation, and shall include, but without duplication, (a) all
indebtedness, obligations or other liabilities of such Person for
borrowed money or under any debt Securities, whether or not
subordinated, (b) all obligations with respect to redeemable
stock and redemption or repurchase obligations under any equity
securities or profit payment agreements, (c) all reimbursement
obligations and other liabilities of such Person with respect to
letters of credit issued for such Person's account, (d) all
obligations of such Person to pay the purchase price of property
or services, except trade payables incurred by such Person in the
ordinary course of business as presently conducted, (e) all
obligations in respect of Capital Leases of such Person, (f) all
Accommodation Obligations of such Person, (g) all indebtedness,
obligations or other liabilities of such Person or others secured
by a Lien on any asset of such Person, whether or not such
indebtedness, obligations or liabilities are assumed by or are a
personal liability of such Person, all as of such time, and (h)
all indebtedness, obligations or other liabilities in respect of
Interest Rate Contracts and foreign currency exchange agreements.
"Initial Funding" shall mean the funding of Loans on
the Initial Funding Date.
"Initial Funding Date" shall mean the date (on or
before October 15, 1995) on which all conditions precedent set
forth in Section 4.01 have been satisfied or waived.
"Initial Loans" shall have the meaning ascribed to such
term in Section 4.01.
"Interest Expense" shall mean, for any period for ATSC,
the Borrower and its Restricted Subsidiaries on a consolidated
basis, total consolidated interest expense, whether paid or
accrued (including any amortization of discount and the interest
component of Capital Leases), for such period, including to the
extent included in interest expense, all commissions, discounts
and other fees and charges owed with respect to the letters of
credit, the fees payable under this Agreement and net costs under
Interest Rate Contracts, all as determined in conformity with
GAAP, plus (without duplication) all capitalized interest.
"Interest Payment Date" shall mean with respect to any
Eurodollar Rate Loan, the last day of each Interest Period
applicable to such Loan; provided that in the case of an Interest
Period of six months or longer, "Interest Payment Date" shall
also include each date that is a three-month anniversary of the
first day of such Interest Period.
"Interest Period" shall have the meaning ascribed to
such term in Section 2.07.
"Interest Rate Contracts" shall mean interest rate
exchange, collar, cap or similar agreements providing interest
rate protection, entered into by the Borrower or ATSC.
"Investment" shall mean, as applied to any Person, any
direct or indirect purchase or other acquisition by that Person
of Securities, or of a beneficial interest in Securities, of any
other Person, and any direct or indirect loan, advance (other
than deposits with financial institutions available for
withdrawal on demand, prepaid expenses, advances to employees and
similar items made or incurred in the ordinary course of
business), or capital contribution by such Person to any other
Person, including all Indebtedness and accounts owed by that
other Person which are not current assets or did not arise from
sales of goods or services to that Person in the ordinary course
of business. The amount of any Investment shall be determined in
conformity with GAAP.
"Investor Group" shall mean Merrill Lynch Capital
Partners, Inc. and its Affiliates.
"IRC" shall mean the Internal Revenue Code of 1986, as
amended from time to time hereafter, and any successor statute.
"IRS" shall mean the Internal Revenue Service of the
United States or any Governmental Authority succeeding to the
functions thereof.
"Issuing Bank" shall mean Bank of America, BankAmerica
International or any other Lender mutually acceptable to the
Agent and the Borrower.
"Lease Financing" shall mean one or more financing
transactions (including sales and leasebacks) in which the
Borrower or any Restricted Subsidiary shall incur Indebtedness
secured by materials handling equipment, computer equipment
and/or store furniture and fixtures.
"Lender" shall have the meaning ascribed to such term
in the preamble and shall include Bank of America, in its
individual capacity, the Issuing Bank and each Person which at
any time becomes a Lender pursuant to Section 12.01(a).
"Letter of Credit" shall mean any Commercial Letter of
Credit or any Standby Letter of Credit issued by the Issuing Bank
for the account of the Borrower pursuant to Article III and
includes each Existing Letter of Credit.
"Letter of Credit Fee" shall have the meaning ascribed
to such term in Section 2.04(d).
"Letter of Credit Obligations" shall mean, at any
particular time, the sum of (a) Reimbursement Obligations and (b)
the aggregate maximum amount then available for drawing under the
Letters of Credit.
"Level I Status" exists at any date if the Pricing
Ratio on such date is less than 2.00 to 1.00.
"Level II Status" exists at any date if the Pricing
Ratio on such date is greater than or equal to 2.00 to 1.00 but
less than 3.00 to 1.00.
"Level III Status" exists at any date if the Pricing
Ratio on such date is greater than or equal to 3.00 to 1.00 but
less than 3.50 to 1.00.
"Level IV Status" exists at any date if the Pricing
Ratio on such date is greater than or equal to 3.50 to 1.00 but
less than 4.25 to 1.00.
"Level V Status" exists at any date if the Pricing
Ratio on such date is greater than or equal to 4.25 to 1.00.
"Liabilities and Costs" shall mean all liabilities,
claims, obligations, responsibilities, losses, damages, punitive
damages, consequential damages, treble damages, charges, costs
and expenses (including attorney's, expert's and consulting fees
and costs of investigation and feasibility studies), fines,
penalties and monetary sanctions, interest, direct or indirect,
known or unknown, absolute or contingent, past, present or
future.
"Lien" shall mean any mortgage, deed of trust, pledge,
hypothecation, assignment, deposit arrangement, security
interest, encumbrance (including, but not limited to, easements,
rights of way and the like), lien (statutory or other),
Environmental Lien, security agreement or transfer intended as
security, including any conditional sale or other title retention
agreement, the interest of a lessor under a Capital Lease, any
financing lease having substantially the same economic effect as
any of the foregoing, and the filing of any financing statement
(other than a financing statement filed pursuant to Section 9-408
of the Uniform Commercial Code not intended as security).
"Loan Documents" shall mean this Agreement, the
Collateral Documents and the Letters of Credit and all other
agreements delivered to the Agent, the Issuing Bank or any Lender
by or on behalf of the Borrower in satisfaction of the
requirements of this Agreement.
"Loans" shall mean, collectively, the Term Loans and
the Revolving Loans.
"Margin Stock" shall have the meaning ascribed to such
term in Regulation G and Regulation U.
"Material Adverse Effect" shall mean, with respect to
the Borrower or ATSC, a material adverse effect upon the
business, assets or other properties, liabilities or condition
(financial or otherwise), results of operations or prospects of
the Borrower and its Restricted Subsidiaries taken as a whole or
ATSC and its Subsidiaries taken as a whole, as the case may be,
upon the ability of the Borrower to repay the Loans, or upon the
benefits provided to the Agent or the Lenders under the
Collateral Documents.
"Maximum Revolving Loan Amount" shall mean, at any
time, (a) the Revolving Loan Commitments at such time (as reduced
pursuant to Section 2.02(e) and 2.05) less (b) the sum of (i) the
then aggregate outstanding Letter of Credit Obligations and (ii)
if applicable, the amount of any Cleandown.
"Multiemployer Plan" shall mean a "multiemployer plan"
as defined in Section 4001(a)(3) of ERISA which is, or within the
immediately preceding six years was, contributed to by either the
Borrower or any ERISA Affiliate.
"Net Income" shall mean, for any period on a
consolidated basis for ATSC, the Borrower and its Restricted
Subsidiaries, the consolidated net income (or loss) of the
Borrower and its Restricted Subsidiaries for such period taken as
a single accounting period, after adding or deducting the amount
of any extraordinary gain and extraordinary loss net of taxes,
determined in conformity with GAAP.
"Net Worth" shall mean, as at any date of determi
nation, the amount by which (a) the total consolidated assets of
ATSC, the Borrower and its Restricted Subsidiaries exceed (b) the
total consolidated liabilities of ATSC, the Borrower and its
Restricted Subsidiaries, as determined in conformity with GAAP
but excluding, for purposes of this definition, unrealized
foreign exchange translation gains and losses from Investments in
foreign Subsidiaries.
"Non-U.S. Lender" shall have the meaning ascribed to
such term in Section 2.09(e).
"Notice of Borrowing" shall mean, with respect to a
proposed Borrowing pursuant to Section 2.01(b) or 2.02(b), a
notice substantially in the form of Exhibit 2.01.
"Notice of Conversion/Continuation" shall mean, with
respect to a proposed conversion or continuation of a Loan
pursuant to Section 2.03(c), a notice substantially in the form
of Exhibit 2.03.
"Obligations" shall mean the principal of and all
interest on all Loans and Reimbursement Obligations, all fees,
expense reimbursements, taxes, compensation and indemnities
payable by the Borrower to the Agent, the Issuing Bank, or any
Lender pursuant to this Agreement and all other present and
future Indebtedness and other liabilities of the Borrower owing
to the Agent, the Issuing Bank, any Lender, or any Person
entitled to indemnification pursuant to Section 12.04, or any of
their respective successors, transferees or assigns, of every
type and description, whether or not evidenced by any note,
guaranty or other instrument, arising under or in connection with
this Agreement, any other Loan Document, or any Interest Rate
Contract, whether or not for the payment of money, whether direct
or indirect (including those acquired by assignment), absolute or
contingent, due or to become due, now existing or hereafter
arising and however arising.
"Operating Lease" shall mean, as applied to any Person,
any lease of any Property by that Person as lessee which is not a
Capital Lease.
"Other Taxes" shall have the meaning ascribed to such
term in Section 2.09(b).
"PBGC" shall mean the Pension Benefit Guaranty Corpora
tion and any Person succeeding to the functions thereof.
"Permits" shall mean any permit, approval, consent,
authorization, license, variance, or permission required from a
Governmental Authority under an applicable Requirement of Law.
"Permitted Existing Liens" shall mean the Liens on any
Property, other than any Environmental Liens, reflected on
Schedule 8.02(b).
"Person" shall mean any natural person, corporation,
limited partnership, general partnership, joint stock company,
joint venture, association, company, trust, bank, trust company,
land trust, business trust or other organization, whether or not
a legal entity, or any other nongovernmental entity, or any
Governmental Authority.
"Plan" shall mean an employee benefit plan defined in
Section 3(3) of ERISA in respect of which either the Borrower or
any ERISA Affiliate is, or within the immediately preceding six
years was, an "employer" as defined in Section 3(5) of ERISA.
"Potential Event of Default" shall mean an event which,
with the giving of notice or the lapse of time, or both, would
constitute an Event of Default.
"Prepayment Acceptance Amount" shall mean, with respect
to each Term Loan Lender in connection with any Specified
Prepayment Event, the maximum principal amount of such Lender's
Term Loan that such Lender wishes to be subject to prepayment, as
indicated in the applicable Prepayment Offer Response Notice of
such Lender.
"Prepayment Amount" shall mean, with respect to any
Specified Prepayment Event, the amount of net proceeds allocated
pursuant to Section 2.05(a) or 2.05(b) to the prepayment of Term
Loans in connection with such Specified Prepayment Event.
"Prepayment Offer Notice" shall mean a written notice
(i) offering to prepay, on a specified date no less than 10 nor
more than 14 days after the date thereof (the "Specified
Prepayment Date"), the Term Loans in an aggregate amount equal to
the Prepayment Amount, (ii) requesting each Term Loan Lender to
respond to such offer by delivering to the Agent and the Borrower
a Prepayment Offer Response Notice no later than four Business
Days prior to the Specified Prepayment Date, and (iii) informing
each such Lender that the failure by such Lender to deliver a
Prepayment Offer Response Notice on or before the fourth Business
Day prior to the Specified Prepayment Date shall be deemed to be
a rejection of such offer by such Lender.
"Prepayment Offer Response Notice" shall mean a written
notice to the Agent and the Borrower in response to a Prepayment
Offer Notice, pursuant to which the Term Loan Lender delivering
such notice states whether such Lender accepts or rejects the
Borrower's offer to prepay Term Loans contained in such
Prepayment Offer Notice, and, if such offer is accepted, states
the maximum principal amount of such Lender's Term Loan which
such Lender wishes to be subject to prepayment.
"Prepayment Pro Rata Amount" shall mean, with respect
to each Term Loan Lender in connection with any Specified
Prepayment Event, such Lender's Pro Rata Term Loan Share of the
associated Prepayment Amount.
"Prepayment Share" shall mean, with respect to each
Term Loan Lender in connection with any Specified Prepayment
Event, the lesser of its Prepayment Acceptance Amount and its
Prepayment Pro Rata Amount.
"Pricing Ratio" shall mean, during any fiscal quarter,
the ratio of (i) Funded Debt as of the last day of the
immediately preceding fiscal quarter to (ii) EBITDA for the four
consecutive fiscal quarters ending with such immediately
preceding fiscal quarter. Changes in the Pricing Ratio indicated
by a Pricing Ratio Certificate shall become effective on the
first day of the fiscal quarter following the fiscal quarter in
respect of which such Pricing Ratio Certificate is delivered;
provided, however, that (a) if any payment of interest,
commitment fee or Letter of Credit Fee is made during the period
between the first day of a fiscal quarter and the date which is
five Business Days after the date of delivery of the Pricing
Ratio Certificate for the immediately preceding fiscal quarter,
such payment shall be tentatively calculated on the basis of the
Pricing Ratio in effect during such immediately preceding fiscal
quarter until the Pricing Ratio is adjusted upon delivery of such
Pricing Ratio Certificate and (b) in the event that no Pricing
Ratio Certificate has been delivered for a fiscal quarter prior
to the last day of the next succeeding fiscal quarter, Level V
Status shall be presumed to exist until delivery of such Pricing
Ratio Certificate. Changes in the rates of calculation of
interest, commitment fee or Letter of Credit Fee resulting from
the operation of either of clauses (a) or (b) above for any
fiscal quarter shall be given effect through adjustments to the
next payments to be made of interest, commitment fee or Letter of
Credit Fee, as the case may be, so as to give effect to such
changes retroactively to the beginning of such fiscal quarter.
"Pricing Ratio Certificate" shall have the meaning
given to such term in Section 6.01(d)(ii).
"Property" shall mean with respect to any Person, any
real or personal property, plant, building, facility, structure,
equipment or unit, or other asset (tangible or intangible) owned,
leased or operated by such Person.
"Pro Rata Revolving Loan Share" shall mean, at any
particular time and with respect to any Lender, a fraction
(expressed as a percentage), the numerator of which shall be the
then amount of such Lender's Revolving Loan Commitment (or, if
the Revolving Loan Commitments have been terminated, such
Lender's Revolving Loan Commitment as in effect immediately prior
to such termination) and the denominator of which shall be the
then aggregate amount of all Revolving Loan Commitments (or, if
the Revolving Loan Commitments have been terminated, the
aggregate amount of all Revolving Loan Commitments as in effect
immediately prior to such termination).
"Pro Rata Share" shall mean, at any particular time and
with respect to any Lender, a fraction (expressed as a
percentage), the numerator of which shall be the then amount of
such Lender's Commitment (or, if the Commitments have been
terminated, such Lender's Commitment as in effect immediately
prior to such termination) and the denominator of which shall be
the then aggregate amount of all Commitments (or, if the
Commitments have been terminated, the aggregate amount of all
Commitments as in effect immediately prior to such termination).
"Pro Rata Term Loan Share" shall mean, at any
particular time and with respect to any Lender, a fraction
(expressed as a percentage), the numerator of which shall be the
then amount of such Lender's Term Loan Commitment (or, if the
Term Loans have been made, the outstanding principal amount of
such Lender's Term Loan) and the denominator of which shall be
the then aggregate amount of all Term Loan Commitments (or, if
the Term Loans have been made, the aggregate outstanding
principal amount of all Term Loans).
"Receivables" shall mean and include all of the
Borrower's presently existing and hereafter arising or acquired
right, title and interest in and to (a) any rights to payment
(the "Pool Receivables") from any Person (an "Obligor") whether
constituting an account, chattel paper, instrument or a general
intangible, arising under revolving credit card accounts
established pursuant to contracts (the "Contracts") between the
Borrower and each Obligor pursuant to which indebtedness may
arise for the purchase of goods, including rights to payment of
any interest or finance charges and other obligations of such
Obligors with respect thereto, (b) all rights to, but not
obligations under, all Contracts, (c) all rights in the
merchandise (including returned merchandise), if any, relating to
the sale which gave rise to any Pool Receivable, (d) all other
security interests or liens and property subject thereto from
time to time purporting to secure payment of a Pool Receivable,
whether pursuant to the Contract related to such Pool Receivable
or otherwise, (e) all UCC financing statements covering any
collateral securing payment of any Pool Receivables, (f) all
guarantees and other agreements or arrangements of whatever
character from time to time supporting or securing payment of any
Pool Receivable whether pursuant to the contract related to such
Pool Receivable or otherwise, (g) all monies due or to become due
with respect thereto, (h) all books and records related to any of
the foregoing, and (i) all proceeds thereof (as defined in the
Uniform Commercial Code) including funds received from or on
behalf of the Obligors in payment of any amounts owed (including
finance charges, interest and all other charges) in respect of
the Pool Receivables or are applied to such amounts owed by the
Obligors (including insurance payments to be applied to amounts
owed in respect of any Pool Receivable).
"Receivables Transaction" shall mean (a) the
transaction contemplated by that certain Receivables Financing
Agreement, dated as of January 27, 1994 among AnnTaylor Funding,
Inc., the Borrower, Clipper Receivables Corporation, State Street
Boston Capital Corporation and PNC Bank, National Association and
the other documents relating thereto (the "1994 Receivables
Transaction") and (b) any other similar transaction replacing the
1994 Receivables Transaction; provided the terms and conditions
of such other transaction are on substantially the same terms as
the transaction described in clause (a) or are satisfactory to
the Requisite Lenders (whose approval shall not be unreasonably
withheld or delayed).
"Reference Bank" shall mean Bank of America.
"Reference Rate" shall mean the rate of interest
publicly announced from time to time by Bank of America in San
Francisco, California, as its reference rate. It is a rate set
by Bank of America based upon various factors including Bank of
America's costs and desired return, general economic conditions
and other factors, and is used as a reference point for pricing
some loans, which may be priced at, above, or below such
announced rate. Any change in the Reference Rate shall take
effect at the opening of business on the date specified in the
public announcement of such change.
"Register" shall have the meaning ascribed to such term
in Section 12.01(e).
"Regulation D", "Regulation G", "Regulation T",
"Regulation U" and "Regulation X" shall mean Regulation D,
Regulation G, Regulation T, Regulation U and Regulation X,
respectively, of the Federal Reserve Board as in effect from time
to time.
"Reimbursement Obligations" shall mean the reimburse
ment or repayment obligations of the Borrower to the Issuing Bank
with respect to Letters of Credit, for amounts paid out
thereunder.
"Release" shall mean any release, spill, emission,
leaking, pumping, injection, deposit, disposal, discharge,
dispersal, leaching or migration from any Property into the
environment, including the movement of Contaminants through or in
the air, soil, surface water, groundwater or Property.
"Remedial Action" shall mean any action required to (i)
clean up, remove, treat or in any other way address Contaminants
in the indoor or outdoor environment; (ii) prevent a Release or
threat of Release or minimize the further Release of Contaminants
so they do not migrate or endanger or threaten to endanger public
health or welfare or the indoor or outdoor environment; or (iii)
perform preremedial studies and investigations and post-remedial
monitoring and care.
"Reportable Event" shall mean the events described in
Section 4043 of ERISA with respect to which the 30-day notice
requirement is not waived.
"Requirements of Law" shall mean, as to any Person, the
charter and by-laws or other organizational or governing
documents of such Person, and any law, rule or regulation,
Permit, or determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding
upon such Person or any of its property or to which such Person
or any of its property is subject, including the Securities Act,
the Securities Exchange Act, Regulation G, Regulation T,
Regulation U and Regulation X, and any certificate of occupancy,
zoning ordinance, building, environmental or land use requirement
or Permit or occupational safety or health law, rule or
regulation.
"Requisite Lenders" shall mean Lenders whose Pro Rata
Shares, in the aggregate, are more than 50%.
"Responsible Officer" shall mean, as to ATSC or the
Borrower, its Chief Financial Officer, its Treasurer or its Vice
President-Finance.
"Restricted Payment" shall mean (a) any dividend or
other distribution, direct or indirect, on account of any shares
of any class of capital stock of ATSC or the Borrower or any of
its Subsidiaries now or hereafter outstanding, including the
Common Stock, except a distribution of stock as part of a stock
split and except a dividend payable solely in shares of that
class of stock or in any junior class of stock to the holders of
that class, (b) any redemption, retirement, sinking fund or
similar payment, purchase or other acquisition for value, direct
or indirect, of any shares of any class of capital stock of ATSC
or the Borrower or any of its Subsidiaries now or hereafter
outstanding, (c) any payment or prepayment of principal of,
premium, if any, or interest on, and any redemption, purchase,
retirement or defeasance of, or sinking fund or similar payment
with respect to, the Subordinated Notes or any consideration paid
to any Person for the purpose of any of the foregoing, and (d)
any payment made to retire, or to obtain the surrender of, any
outstanding warrants, options or other rights to acquire shares
of any class of capital stock of ATSC or the Borrower or any of
the Borrower's Subsidiaries now or hereafter outstanding.
"Restricted Subsidiary" shall mean any Subsidiary of
the Borrower which is not an Unrestricted Subsidiary. Whether or
not a Restricted Subsidiary is a "wholly-owned Restricted
Subsidiary" shall be determined without taking into account any
directors' qualifying shares.
"Revolving Loan" shall have the meaning ascribed to
such term in Section 2.02(a).
"Revolving Loan Commitment" shall mean, with respect to
each Lender as the context may require, (a) the principal amount
set out opposite such Lender's name under the heading "Revolving
Loan Commitment" in Schedule 1.01(b) or assigned to it in
accordance with Section 12.01(a), as such amount may be reduced
or otherwise adjusted from time to time pursuant to the terms of
this Agreement or (b) the obligation of such Lender to make
Revolving Loans hereunder in the amount specified in the
immediately preceding clause (a), and "Revolving Loan
Commitments" shall mean the aggregate amount of the Revolving
Loan Commitments of all Lenders.
"Revolving Loan Lender" shall mean each Lender having a
Revolving Loan Commitment.
"Securities" shall mean any stock, shares, voting trust
certificates, bonds, debentures, notes or other evidences of
indebtedness, secured or unsecured, convertible, subordinated or
otherwise, or in general any instruments commonly known as
"securities", or any certificates of interest, shares, or
participations in temporary or interim certificates for the
purchase or acquisition of, or any right to subscribe to,
purchase or acquire any of the foregoing, but shall not include
any evidence of the Obligations.
"Securities Act" shall mean the Securities Act of 1933,
as amended to the date hereof and from time to time hereafter,
and any successor statute.
"Securities Exchange Act" shall mean the Securities
Exchange Act of 1934, as amended to the date hereof and from time
to time hereafter, and any successor statute.
"Specified Prepayment Date" shall have the meaning
ascribed to such term in the definition of Prepayment Offer
Notice in Section 1.01.
"Specified Prepayment Event" shall mean any voluntary
or mandatory prepayment by the Borrower in respect of the Term
Loans pursuant to Section 2.05.
"Specified Stated Prepayment Date" shall have the
meaning ascribed to such term in Section 2.05(c).
"Standby Letter of Credit" shall mean any Letter of
Credit which is not a Commercial Letter of Credit.
"Subordinated Note Indenture" shall mean the indenture
dated as of June 15, 1993 between the Borrower and Fleet Bank,
N.A., as trustee pursuant to which the Subordinated Notes were
issued.
"Subordinated Notes" shall mean the 8 3/4% Subordinated
Notes due 2000 issued pursuant to the Subordinated Note
Indenture.
"Subsidiary" shall mean, with respect to any Person,
any corporation, partnership, trust or other entity of which a
majority of the stock (or equivalent ownership or controlling
interest) having voting power to elect a majority of the Board of
Directors (if a corporation) or to select the trustee or
equivalent controlling interest is directly or indirectly owned
or controlled by such Person or one or more of the other
Subsidiaries of such Person or any combination thereof; provided,
however, that for purposes of this Agreement the charitable
foundation permitted to be established pursuant to Section
8.02(a)(viii) shall not be deemed to be a Subsidiary of the
Borrower.
"Taxes" shall have the meaning ascribed to such term in
Section 2.09.
"Term Loan" shall have the meaning ascribed to such
term in Section 2.01(a).
"Term Loan Commitment" shall mean, with respect to each
Lender as the context may require (a) the principal amount set
out opposite such Lender's name under the heading "Term Loan
Commitment" in Schedule 1.01(b) or assigned to it in accordance
with Section 12.01(a), as such amount may be reduced pursuant to
the terms of this Agreement or (b) the obligation of such Lender
to make Term Loans hereunder in the amount specified in the
immediately preceding clause (a), and "Term Loan Commitments"
shall mean the aggregate principal amount of the Term Loan
Commitments of all Lenders.
"Term Loan Lender" shall mean any Lender having a Term
Loan Commitment.
"Term Note" shall have the meaning ascribed to such
term in Section 2.01(e).
"Termination Date" shall mean the earlier to occur of
(a) the Final Maturity Date and (b) the date of termination of
the Commitments pursuant to Section 10.02(a).
"Termination Event" shall mean (i) a Reportable Event
with respect to any Benefit Plan; (ii) the withdrawal of the
Borrower or any ERISA Affiliate from a Benefit Plan during a plan
year in which the Borrower or such ERISA Affiliate was a "substan
tial employer" as defined in Section 4001(a)(2) of ERISA or the
cessation of operations which results in the termination of
employment of 20% of Benefit Plan participants who are employees
of the Borrower and its ERISA Affiliates; (iii) the imposition of
an obligation on the Borrower or any ERISA Affiliate under
Section 4041 of ERISA to provide affected parties written notice
of intent to terminate a Benefit Plan in a distress termination
described in Section 4041(c) of ERISA; (iv) the institution by
the PBGC of proceedings to terminate a Benefit Plan; (v) any
event or condition which constitutes grounds under Section 4042
of ERISA (excluding Section 4042(a)(4)) for the termination of,
or the appointment of a trustee to administer, any Benefit Plan;
or (vi) the partial or complete withdrawal of the Borrower or any
ERISA Affiliate from a Multiemployer Plan.
"Total Capitalization" means, as of any date of
determination, the sum of Funded Debt plus obligations in respect
of Capital Leases plus ATSC shareholders equity.
"Trademark Assignment" shall mean a Trademark Security
Agreement substantially in the form of, and on the terms set
forth in, Exhibit 4.01(a)(iii)(B), as the same may be amended,
supplemented or otherwise modified from time to time.
"Transaction Costs" shall mean the fees, costs and
expenses payable by the Borrower or any of its Subsidiaries or
ATSC pursuant hereto or in connection herewith or in respect
hereof.
"Unrestricted Subsidiary" shall mean a Subsidiary of
the Borrower which has been designated as such by resolution duly
adopted by the board of directors of the Borrower, which at the
time of such designation had assets of $1,000 or less and which
does not own or hold any Securities of, or any Lien on any
Property of, ATSC, the Borrower or any Restricted Subsidiary
provided no Subsidiary of the Borrower shall be (or if already an
Unrestricted Subsidiary shall immediately cease to be) an
Unrestricted Subsidiary if, at any time, ATSC, the Borrower or
any other Restricted Subsidiary of the Borrower shall create,
incur, issue, assume, guarantee or in any other manner whatsoever
be or become liable with respect to any Claim against or any
Contractual Obligation or Indebtedness of, such Subsidiary.
1.02. Computation of Time Periods. In this Agreement, in
the computation of periods of time from a specified date to a
later specified date, the word "from" means "from and including"
and the words "to" and "until" each mean "to but excluding".
Periods of days referred to in this Agreement shall be counted in
calendar days unless Business Days are expressly prescribed.
1.03. Accounting Terms. For purposes of this Agreement,
all accounting terms not otherwise defined herein shall have the
meanings assigned to them in conformity with GAAP.
1.04. Other Definitional Provisions. References to
"Articles", "Sections", "subsections", "Schedules", "Exhibits"
and "the preamble" shall be to Articles, Sections, subsections,
Schedules, Exhibits and the preamble, respectively, of this
Agreement unless otherwise specifically provided. The words
"include" and "including" when used herein are not intended to be
exclusive and mean "include, without limitation" and "including,
without limitation."
ARTICLE II
Amounts and Terms of Loans
2.01. The Term Loan Facility.
(a) Amount of the Term Loan. (i) Subject to the
terms and conditions set forth in this Agreement, each Term Loan
Lender hereby severally and not jointly agrees to make to the
Borrower on the Initial Funding Date a term loan (the term loan
of each Lender, a "Term Loan", and the term loans of all Lenders,
the "Term Loans") in the amount requested by the Borrower which
shall not exceed such Lender's Term Loan Commitment.
(ii) On the date of, and after giving effect, to
the borrowing of the Term Loans, the Term Loan Commitments shall
be automatically reduced by the unborrowed amount thereof. After
the date of borrowing of the Term Loans, the Term Loan
Commitments shall be further permanently reduced by the amount of
any voluntary or mandatory prepayment pursuant to paragraphs (a)
and (b) of Section 2.05, subject to Section 2.05(c).
(iii) Any principal amount of the Term Loans
borrowed pursuant to this Section 2.01 which is repaid or prepaid
may not be reborrowed.
(iv) The Term Loans shall be made by the Term
Loan Lenders simultaneously and proportionately to their respec
tive Pro Rata Term Loan Shares, it being understood that no
Lender shall be responsible for any failure by any other Lender
to perform its obligation to make a Term Loan hereunder and that
the Term Loan Commitment of any Lender shall not be increased or
decreased without the prior written consent of such Lender as a
result of the failure by any other Lender to perform its obliga
tion to make a Term Loan hereunder.
(b) Notice of Borrowing. When the Borrower desires
to borrow under this Section 2.01 it shall deliver to the Agent a
Notice of Borrowing no later than 12:00 noon (New York time) (i)
at least one Business Day in advance of the proposed Funding
Date, in the case of a Borrowing of Base Rate Loans, and (ii) at
least three Business Days in advance of the proposed Funding
Date, in the case of a Borrowing of Eurodollar Rate Loans;
provided, however, that in the case of a Borrowing of Base Rate
Loans on the Initial Funding Date, the Notice of Borrowing may be
delivered not later than 10:00 a.m. (New York time) on the date
of such Borrowing. The Notice of Borrowing shall specify (A) the
Funding Date, (B) the aggregate principal amount of Term Loans to
be funded on such date, (C) whether the proposed Borrowing will
be of Base Rate Loans or Eurodollar Rate Loans; and (D) in the
case of Eurodollar Rate Loans, the requested Interest Period. In
lieu of delivering the above-described Notice of Borrowing and
only with the consent of the Agent in its sole discretion at such
time, the Borrower may give the Agent telephonic notice of any
proposed Borrowing by the time required under this Section
2.01(b); provided that, in the event the Agent so consents, such
notice shall be confirmed immediately by delivery to the Agent of
a Notice of Borrowing by facsimile. Any Notice of Borrowing (or
telephonic notice in lieu thereof) made pursuant to this
Section 2.01(b) shall be irrevocable.
(c) Making of Loans. Promptly after receipt of a
Notice of Borrowing under Section 2.01(b) (or telephonic notice
in lieu thereof if the Agent consents to such telephonic notice
immediately confirmed by facsimile), the Agent shall notify each
Term Loan Lender by facsimile, or other similar form of tele
transmission, of the proposed Borrowing. Each Term Loan Lender
shall make the amount of its Term Loan available to the Agent at
the Agent's Payment Office in Dollars and in immediately
available funds, not later than (i) 1:00 p.m. (New York time) on
the Funding Date, in the case of a Borrowing of Base Rate Loans
and (ii) 11:00 a.m. (New York time) on the Funding Date, in the
case of a Borrowing of Eurodollar Rate Loans. After the Agent's
receipt of the proceeds of such Loans, the Agent shall make the
proceeds of such Loans available to the Borrower on such Funding
Date in Dollars and in immediately available funds to an account
of the Borrower, designated in writing by the Borrower in the
Notice of Borrowing.
(d) Amount of Term Loans. Any Term Loans made shall
be in the aggregate minimum amount of $10,000,000 and in integral
multiples of $1,000,000 in excess thereof.
(e) Loan Accounts; Term Notes. The Term Loans made
by each Lender shall be evidenced by one or more loan accounts
maintained by such Lender in the ordinary course of business.
The loan accounts or records maintained by the Agent and each
Lender shall be conclusive absent manifest error of the amount of
the Term Loans made by the Lenders to the Borrower and the
interest and payments thereon. Any failure so to record or any
error in doing so shall not, however, limit or otherwise affect
the obligation of the Borrower hereunder to pay any amount owing
with respect to the Term Loans. Notwithstanding the foregoing,
the Borrower agrees that, upon request to the Agent by any
Lender, in order to evidence such Lender's Term Loan, the
Borrower will execute and deliver to such Lender a promissory
note substantially in the form of Exhibit 2.01(e) (each, as
amended, supplemented, replaced or otherwise modified from time
to time, a "Term Note"), with appropriate insertions therein as
to payee, date and principal amount. Each Term Note shall (i) be
dated the Initial Funding Date, (ii) be payable as provided in
Section 2.01(f) and (iii) provide for the payment of interest in
accordance with Section 2.03.
(f) Repayment of Term Loans. Subject to the earlier
prepayment thereof pursuant to Section 2.05, the principal amount
of the Term Loans shall be repaid by the Borrower on the third
anniversary of the Initial Funding Date, and the Borrower hereby
promises to make such payment on such date.
(g) No Change of Term Loan Provisions.
Notwithstanding any other provision of this Agreement, without
the written consent of each Term Loan Lender affected thereby, no
modification of this Agreement shall increase any Term Loan
Commitment, extend the maturity date of the Term Loans, reduce
the principal of, or rate of interest on, the Term Loans or
change the provisions of Section 2.01 or 2.05(c).
2.02. The Revolving Loan Facility.
(a) Availability. (i) Subject to the terms and
conditions set forth in this Agreement, each Revolving Loan
Lender hereby severally and not jointly agrees to make to the
Borrower from time to time during the period from the Initial
Funding Date to the Termination Date, revolving loans (each
individually, a "Revolving Loan" and, collectively, the
"Revolving Loans"), in an amount which shall not exceed, in the
aggregate at any time outstanding, such Lender's Commitment;
provided that the aggregate principal amount of all Revolving
Loans outstanding at any one time shall not exceed the then
Maximum Revolving Loan Amount.
(ii) All Revolving Loans under this Agreement shall
be made by the Lenders simultaneously and proportionately to
their respective Pro Rata Revolving Loan Shares, it being
understood that no Lender shall be responsible for any failure by
any other Lender to perform its obligation to make a Loan
hereunder and that the Revolving Loan Commitment of any Lender
shall not be increased or decreased without the prior written
consent of such Lender as a result of the failure by any other
Lender to perform its obligation to make a Revolving Loan. The
failure of any Lender to make available to the Agent any
Borrowing of the Revolving Loan Commitments shall not relieve any
other Lender of its obligation hereunder to make available to the
Agent such other Lender's Pro Rata Revolving Loan Share of any
Borrowing of the Revolving Loan Commitments on the date such
funds are to be made available pursuant to the terms of this
Agreement.
(iii) Revolving Loans may be prepaid pursuant to
Section 2.05, and, subject to the provisions of this Agreement,
any amounts so prepaid may be reborrowed, up to the amount
available under this Section 2.02(a) at the time of such
Borrowing, until the Business Day immediately preceding the Final
Maturity Date. Each Lender's Revolving Loan Commitment shall
expire, and each Revolving Loan then outstanding shall mature and
be repaid by the Borrower, without further action on the part of
the Lenders, on the Final Maturity Date.
(iv) Revolving Loans made on any Funding Date shall
be in the aggregate minimum amount of $1,000,000 and in integral
multiples of $1,000,000 in excess thereof.
(v) The Borrower shall from time to time effect a
prepayment of the outstanding Revolving Loans (such amount, a
"Cleandown") so as to cause the aggregate outstanding principal
amount of the Revolving Loans to be not more than (A)
$85,000,000, for at least 15 consecutive days in the Fiscal Year
beginning on January 29, 1995 and (B) $50,000,000, for at least
30 consecutive days in each Fiscal Year thereafter (each such
period, a "Cleandown Period"). Promptly after the end of any
Cleandown Period, the Borrower shall notify the Agent that a
Cleandown Period has occurred and the Agent shall notify the
Lenders.
(b) Notice of Borrowing. Whenever the Borrower
desires to borrow under this Section 2.02, the Borrower shall
deliver to the Agent a Notice of Borrowing (i) no later than
11:00 a.m. (New York time) on the proposed Funding Date, in the
case of a Borrowing of Base Rate Loans, and (ii) not later than
11:00 a.m. (New York time) at least three Business Days in
advance of the proposed Funding Date, in the case of a Borrowing
of Eurodollar Rate Loans. The Notice of Borrowing shall specify
(A) the Funding Date (which shall be a Business Day), (B) the
amount of the proposed Borrowing, (C) whether the proposed
Borrowing will be of Base Rate Loans or Eurodollar Rate Loans,
and (D) in the case of Eurodollar Rate Loans, the requested
Interest Period. In lieu of delivering the above-described
Notice of Borrowing and only with the consent of the Agent in its
sole discretion at such time, the Borrower may give the Agent
telephonic notice of any proposed Borrowing by the time required
under this Section 2.02(b); provided that, in the event the Agent
so consents, such notice shall be confirmed immediately by
delivery to the Agent of a Notice of Borrowing by facsimile. Any
Notice of Borrowing (or telephonic notice in lieu thereof)
pursuant to this Section 2.02(b) shall be irrevocable.
(c) Making of Loans. Promptly after receipt of a
Notice of Borrowing under Section 2.02(b) (or telephonic notice
in lieu thereof if the Agent consents to such telephonic notice,
immediately confirmed by facsimile), the Agent shall notify each
Revolving Loan Lender by facsimile or other similar form of
teletransmission, of the proposed Borrowing. Each Revolving Loan
Lender shall make the amount of its Revolving Loan available to
the Agent at the Agent's Payment Office in Dollars and in
immediately available funds, not later than (i) 1:00 p.m. (New
York time) on the Funding Date, in the case of a Borrowing of
Base Rate Loans and (ii) 11:00 a.m. (New York time) on the
Funding Date, in the case of a Borrowing of Eurodollar Rate
Loans. After the Agent's receipt of the proceeds of such Loans,
the Agent shall make the proceeds of such Loans available to the
Borrower on such Funding Date in Dollars and in immediately
available funds to an account of the Borrower, designated in
writing by the Borrower in the Notice of Borrowing.
(d) Loan Accounts. The Revolving Loans made by each
Lender shall be evidenced by one or more loan accounts maintained
by the Agent and such Lender in the ordinary course of business.
The loan accounts or records maintained by the Agent and each
Lender shall be conclusive absent manifest error of the amount of
the Revolving Loans made by the Lenders to the Borrower and the
interest and payments thereon. Any failure so to record or any
error in doing so shall not, however, limit or otherwise affect
the obligation of the Borrower hereunder to pay any amount owing
with respect to the Revolving Loans. In case of a discrepancy
between the entries in the Agent's books and any Lender's books,
such Lender's books shall constitute prima facie evidence of the
accuracy of the information so recorded.
(e) Termination or Reduction of Revolving Loan
Commitments. The Borrower shall have the right, at any time and
from time to time, (a) to terminate the Revolving Loan
Commitments in whole, without premium or penalty, if no Revolving
Loans or Letter of Credit Obligations are then outstanding, or
(b) permanently to reduce in part, without premium or penalty,
the Revolving Loan Commitments by an amount of up to (i) the then
maximum amount of the Revolving Loan Commitments, less (ii) the
aggregate principal amount of Revolving Loans and Letter of
Credit Obligations then outstanding. The Borrower shall give not
less than three Business Days' prior irrevocable written notice
(not later than 11:00 a.m. (New York time) on such day) to the
Agent designating the date (which shall be a Business Day) of
such termination or reduction and the amount of any partial
reduction. Promptly after receipt of a notice of such
termination or reduction, the Agent shall notify each Lender of
the proposed termination or reduction. Such termination or
partial reduction of the Revolving Loan Commitments shall be
effective on the date specified in the Borrower's notice and
shall reduce the Revolving Loan Commitment of each Revolving Loan
Lender proportionately in accordance with its Pro Rata Revolving
Loan Share. Any such partial reduction of the Commitments shall
be in an aggregate minimum amount of $2,000,000 and integral
multiples of $1,000,000 in excess of that amount.
(f) Extension of Revolving Loan Commitments.
(i) Upon the written request of the Borrower,
received by the Agent not earlier than May 31, 1997 and not later
than June 15, 1997, and subject to the consent of each Revolving
Loan Lender willing to grant such request, the Final Maturity
Date shall be extended for an additional one-year period
commencing on the then current Final Maturity Date. The Agent
shall promptly transmit such request to each Revolving Loan
Lender. The Revolving Loan Lenders shall respond through the
Agent to any such request of the Borrower not later than June 30,
1997. Any Revolving Loan Lender not responding by such time
shall be deemed to have declined the request.
(ii) At the option of the Borrower, the Revolving
Loan Commitment of any Lender not consenting to the Borrower's
request to extend such Lender's Revolving Loan Commitment may be
assumed, in whole or in part, by one or more existing Revolving
Loan Lenders or other Persons meeting the qualifications of
Eligible Assignee acceptable to the Borrower and the Agent and
consenting to such assumption, upon compliance with Section
12.01; provided, however, that unless otherwise agreed by the
assuming Lender or bank, the Borrower shall pay the processing
and recordation fee required by Section 12.01(a) and any
breakfunding fee required pursuant to Section 2.08(d).
(iii) If the Revolving Loan Commitment of any
Lender which has declined the request to extend its Revolving
Loan Commitment has not subsequently so consented and is not
replaced within six months after the first or second anniversary
of the Initial Funding Date, as the case may be, then the
Revolving Loan Commitments shall terminate on the then current
Final Maturity Date.
(g) Repayment of Revolving Loans. The Borrower
hereby promises to pay on the Final Maturity Date the then
outstanding principal amount of Revolving Loans.
2.03. Interest on the Loans.
(a) Rate of Interest. The Borrower promises to pay
interest on the unpaid principal amount of all Loans from the
date made until paid in full at a fluctuating rate determined
from time to time by reference to the Base Rate or the Eurodollar
Rate. The applicable basis for determining the rate of interest
shall be selected by the Borrower at the time a Notice of
Borrowing is given by the Borrower pursuant to Section 2.01(b) or
2.02(b) or at the time a Notice of Conversion/Continuation is
delivered by the Borrower pursuant to Section 2.03(c); provided
that the Borrower may not select the Eurodollar Rate as the
applicable basis for determining the rate of interest on a Loan
if at the time of such selection an Event of Default has occurred
and is continuing. If on any day a Loan is outstanding with
respect to which notice has not been delivered to the Agent in
accordance with the terms of this Agreement specifying the basis
for determining the rate of interest, then for each such day such
Loan shall be a Base Rate Loan. Interest accrued and unpaid on
loans under the Existing Credit Agreement for the period prior to
the Initial Funding Date shall be payable as provided in the
Existing Credit Agreement; and from and after the Initial Funding
Date, the Loans shall bear interest, subject to Section 2.03(d),
as follows:
(i) Revolving Loans shall bear interest from the
Initial Funding Date until the first day of the third full fiscal
quarter after the Initial Funding Date at a rate per annum which
is (A) in the case of Base Rate Loans, equal to the Base Rate
plus .75% and (B) in the case of Eurodollar Rate Loans, equal to
the Eurodollar Rate determined for the applicable Interest Period
plus 1.75%; thereafter, Revolving Loans shall bear interest as
follows:
1) if a Base Rate Loan, then at a rate per annum
for each day equal to the sum of (x) the Base Rate as in effect
from time to time as interest accrues and (y) the applicable
margin set forth below opposite the Pricing Ratio in effect on
such day:
Pricing Ratio Applicable Margin
Level I Status 0%
Level II Status 0%
Level III Status .50%
Level IV Status .75%
Level V Status 1.25%
2) if a Eurodollar Rate Loan, then at a rate per
annum for each day equal to the sum of (x) the Eurodollar Rate
determined for the applicable Interest Period and (y) the
applicable margin set forth below opposite the Pricing Ratio in
effect on such day:
Pricing Ratio Applicable Margin
Level I Status .75%
Level II Status 1.00%
Level III Status 1.50%
Level IV Status 1.75%
Level V Status 2.25%
(ii) Term Loans shall bear interest at a rate per
annum which is (A) in the case of Base Rate Loans, equal to the
Base Rate plus 1.50% and (B) in the case of Eurodollar Rate
Loans, equal to the Eurodollar Rate determined for the applicable
Interest Period plus 2.50%; provided, that Bank of America may,
at the time of any sale by it of all or any portion of the Term
Loans, by written notice to the Agent and the Borrower, increase
the interest rate margins applicable to the Term Loans by up to
1% per annum, and if such notice is given, such interest rate
margins will so increase effective on the date of such sale.
(b) Interest Payments. Subject to Section 2.03(d),
(i) interest accrued on each Base Rate Loan shall be payable in
arrears (A) on the 15th day of each January, April, July and
October, for the three-month period ending on such date,
commencing on the first such day following the making of such
Base Rate Loan, (B) upon the prepayment thereof on the amount
prepaid, (C) upon conversion thereof to a Eurodollar Rate Loan
and (D) at maturity; and (ii) interest accrued on each Eurodollar
Rate Loan shall be payable in arrears (A) on each Interest
Payment Date applicable to such Eurodollar Rate Loan, (B) upon
the prepayment thereof on the amount prepaid and (C) at maturity.
(c) Conversion or Continuation. (i) Subject to the
provisions of Sections 2.07 and 2.08, the Borrower shall have the
option (A) to convert at any time all or any part of outstanding
Loans which comprise part of the same Borrowing and which, in the
aggregate, equal $1,000,000 or an integral multiple of $1,000,000
in excess of such amount from Base Rate Loans to Eurodollar Rate
Loans; or (B) to convert all or any part of outstanding Loans
which, in the aggregate, equal $1,000,000 or an integral multiple
of $1,000,000 in excess of that amount from Eurodollar Rate Loans
to Base Rate Loans on the expiration date of any Interest Period
applicable thereto, provided the remaining amount of Eurodollar
Rate Loans with the same interest period shall not be less than
$1,000,000; or (C) upon the expiration of any Interest Period
applicable to a Borrowing of Eurodollar Rate Loans, to continue
all or any portion of such Loans equal to $1,000,000 or an
integral multiple of $1,000,000 in excess of such amount as
Eurodollar Rate Loans, and the succeeding Interest Period of such
continued Loans shall commence on the expiration date of the
Interest Period applicable thereto; provided that no outstanding
Loan may be continued as, or be converted into, a Eurodollar Rate
Loan when any Event of Default has occurred and is continuing.
(ii) In the event the Borrower shall elect to
convert or continue a Loan under this Section 2.03(c), the
Borrower shall deliver an irrevocable Notice of
Conversion/Continuation to the Agent no later than 11:00 a.m.
(New York time) at least three Business Days in advance of the
proposed conversion date or date of continuation. A Notice of
Conversion/Continuation shall specify (w) the proposed
conversion/continuation date (which shall be a Business Day), (x)
the amount of the Loan to be converted/continued, (y) the nature
of the proposed conversion/continuation, and (z) in the case of a
conversion to, or a continuation of, a Eurodollar Rate Loan, the
requested Interest Period. In lieu of delivering the
above-described Notice of Conversion/Continuation, the Borrower
may give the Agent telephonic notice of any proposed
conversion/continuation by the time required under this Section
2.03(c); provided that such notice shall be confirmed immediately
by delivery to the Agent by facsimile of a Notice of
Conversion/Continuation. No failure of the Borrower to confirm
any telephonic notice by facsimile shall impair or in any way
limit the Borrower's obligations with respect to such Loans.
Promptly after receipt of a Notice of Conversion/Continuation
under this Section 2.03(c) (or telephonic notice in lieu thereof
immediately confirmed by facsimile), the Agent shall notify each
Lender of the proposed conversion/continuation.
(iii) Any Notice of Conversion/Continuation for
conversion to, or continuation of, a Loan (or telephonic notice
in lieu thereof) shall be irrevocable and the Borrower shall be
bound to convert or continue in accordance therewith.
(d) Default Interest. Notwithstanding the rates of
interest specified in Section 2.03(a) and the payment dates
specified in Section 2.03(b), effective immediately upon the
occurrence of any Event of Default of the type specified in
Section 10.01(a) or upon acceleration of maturity pursuant to
Section 10.02(a) and for so long thereafter as any such Event of
Default or acceleration shall be continuing, the principal
balance of all Loans and Reimbursement Obligations then due and
payable (including all amounts due and payable pursuant to
Section 10.02(a)) and any interest payments on the Loans not paid
when due, shall bear interest payable upon demand at a rate which
is 2 per cent per annum in excess of the rate of interest
otherwise payable under this Agreement.
(e) Computation of Interest. Interest on Base Rate
Loans and Reimbursement Obligations shall be computed on the
basis of the actual number of days elapsed in the period during
which interest accrues and a year of 365 or 366 days, as
applicable. Interest on Eurodollar Rate Loans shall be computed
on the basis of the actual number of days elapsed in the period
during which interest accrues and a year of 360 days. In
computing interest on any Loan, the date of the making of the
Loan or the first day of an Interest Period, as the case may be,
shall be included and the date of payment or the expiration date
of an Interest Period, as the case may be, shall be excluded;
provided that if a Loan is repaid on the same day on which it is
made, one day's interest shall be paid on that Loan.
(f) Changes; Legal Restrictions. In the event that
after the date hereof (a) the adoption of or any change in any
law, treaty, rule, regulation, guideline or determination of a
Governmental Authority or any change in the interpretation or
application thereof by a Governmental Authority, or (b)
compliance by any Lender with any request or directive (whether
or not having the force of law and whether or not the failure to
comply therewith would be unlawful) from any central bank or
other Governmental Authority or quasi-governmental authority
exercising jurisdiction, power or control over banks or financial
institutions generally, does impose, modify, or hold applicable,
in the determination of a Lender, any reserve, special deposit,
compulsory loan, FDIC insurance, capital allocation or similar
requirement against assets held by, or deposits or other
liabilities (including those pertaining to Letters of Credit) in
or for the account of, advances or loans by, Commitments made, or
other credit extended by, or any other acquisition of funds by, a
Lender or any Applicable Lending Office of such Lender (except
(a) with respect to Base Rate Loans, so long as the Base Rate in
effect at the time is determined under clause (a) in the
definition of "Base Rate", (b) with respect to Base Rate Loans,
to the extent that the reserve and FDIC insurance requirements
are reflected in the definition of "Base Rate" and (c) with
respect to Eurodollar Rate Loans, to the extent that the reserve
requirements are reflected in the definition of Eurodollar
Rate"), and the result of any of the foregoing is to increase the
cost to such Lender of making, renewing or maintaining the Loans
or its Commitment to the Borrower or issuing to the Borrower any
Letter of Credit or to reduce any amount receivable hereunder or
thereunder; then, in any such case, the Borrower shall upon
written notice from and demand by that Lender pay to such Lender,
within 15 Business Days of the date specified in such notice and
demand, such amount or amounts (based upon a reasonable
allocation thereof by such Lender to the financing transactions
contemplated by this Agreement and affected by this Section
2.03(f)) as may be necessary to compensate that Lender for any
such additional cost incurred or reduced amount received. Such
Lender shall deliver to the Borrower a written statement of the
costs or reductions claimed and the basis therefor, and the
allocation made by such Lender of such costs and reductions,
which statement shall, in the absence of manifest error, be
conclusive. If a Lender subsequently recovers from another
Person any amount previously paid by the Borrower pursuant to
this Section 2.03(f), such Lender shall, within 30 days after
receipt of such refund and to the extent permitted by applicable
law, pay to the Borrower, without interest, the amount of any
such recovery.
2.04. Fees.
(a) Fees to Bank of America. The Borrower shall pay
to Bank of America, for its own account and/or for the account of
the Arranger, fees in the amounts set forth in the Fee Letter,
payable on the Initial Funding Date. Except as contemplated by
the Fee Letter, no Person other than Bank of America and the
Arranger shall have any interest in such fees.
(b) Commitment Fee.
(i) The Borrower shall pay to the Agent, for the
account of each Revolving Loan Lender, in accordance with their
Pro Rata Revolving Loan Shares, a commitment fee accruing from
and after the Initial Funding Date to the Termination Date upon
the difference between (A) the Revolving Loan Commitments in
effect from time to time and (B) the Revolving Loans and Letter
of Credit Obligations outstanding from time to time. All such
commitment fees payable under this paragraph shall be payable in
arrears on the fifteenth day of each January, April, July and
October beginning after the Initial Funding Date and in addition
on the Termination Date.
(ii) Commitment fees shall accrue from the Initial
Funding Date until the first day of the third full fiscal quarter
after the Initial Funding Date at the rate of .375% per annum;
thereafter, commitment fees shall accrue for each day at a rate
per annum equal to the percentage per annum set forth below
opposite the Pricing Ratio in effect on such day:
Pricing Ratio Commitment Fee
Level I Status .25%
Level II Status .25%
Level III Status .375%
Level IV Status .375%
Level V Status .50%
(iii) Commitment fees accrued under the Existing
Credit Agreement for the period prior the Initial Funding Date
shall be payable as provided in the Existing Credit Agreement.
(c) Agency Fee. The Borrower shall pay to the Agent,
solely for its own account, the agency fee set forth in the Fee
Letter in the amount per annum agreed between the Agent and the
Borrower payable in advance on the Initial Funding Date and each
one-year anniversary of the Initial Funding Date. No Person
other than the Agent shall have any interest in such fee.
(d) Letter of Credit Fees. The Borrower shall pay to
the Agent, for the account of the Revolving Loan Lenders, or to
the Issuing Bank, as applicable, a fee for each Letter of Credit
issued on behalf of the Borrower (the "Letter of Credit Fee"),
determined as set forth in Section 3.08(a) and (b).
(e) Amendment Fee. The Borrower shall pay to the
Agent, for the account of each Revolving Loan Lender that signs
this Agreement, an amendment fee equal to 1/4 of 1% of the amount
of the Revolving Loan Commitment of such Lender, payable on the
Initial Funding Date.
(f) Payment of Fees. The fees described in this
Section 2.04 represent compensation for services rendered and to
be rendered separate and apart from the lending of money or the
provision of credit and do not constitute compensation for the
use, detention or forbearance of money, and the obligation of the
Borrower to pay each fee described herein shall be in addition
to, and not in lieu of, the obligation of the Borrower to pay
interest, other fees and expenses otherwise described in this
Agreement. Fees and expenses shall be payable when due in
immediately available funds. All fees and expenses shall be
nonrefundable when paid. All fees and expenses specified or
referred to in this Agreement due to the Agent, the Issuing Bank
or a Lender, including those referred to in this Section 2.04 and
in Section 12.03, shall constitute Obligations and shall be
secured by all the Collateral. All fees described in this
Section 2.04 which are expressed as a per annum charge shall be
calculated on the basis of the actual number of days elapsed in a
360-day year.
2.05. Prepayments.
(a) Voluntary Prepayments. The Borrower may, upon
not less than one Business Day's prior written or telephonic
irrevocable notice (in each case not later than 11:00 a.m. (New
York time) on the date such notice is given), if made by
telephone, confirmed immediately by facsimile to the Agent (which
notice the Agent shall promptly transmit by facsimile (or other
similar form of teletransmission) or telephone to each Lender),
at any time and from time to time, prepay any Base Rate Loan or
Eurodollar Rate Loan in whole or in part, without premium or
penalty, in an aggregate minimum amount of $1,000,000, and
integral multiples of $1,000,000 in excess of such amounts;
provided that the Borrower may prepay such Loans in full without
regard to such minimum amount; and provided, further, that if the
Borrower prepays any Eurodollar Rate Loan on a date other than
the expiration date of the Interest Period applicable thereto,
the Borrower shall pay to the Agent the amounts described in
Section 2.08(d). Any notice of prepayment given to the Agent
under this Section 2.05(a) shall specify the date of prepayment
and the aggregate principal amount of the prepayment. If a
notice of prepayment has been delivered as provided herein, such
notice shall be irrevocable and the principal amount of the Loans
specified in such notice shall become due and payable on the
prepayment date specified in such notice.
(b) Mandatory Commitment Reductions; Mandatory
Prepayments. (i) In the event that the Borrower and/or any
Restricted Subsidiary shall consummate the Distribution Center
Financing and/or any portion of the Lease Financing in any fiscal
quarter, then at the time of the required delivery of the
Borrower's financial statements under Section 6.01(a) or (b), as
the case may be, for the period including such fiscal quarter, an
amount equal to 50% of the greater of (x) the net cash proceeds
of each such transaction and (y) the principal amount of
Indebtedness (as reflected on such financial statements) incurred
by the Borrower and/or such Restricted Subsidiary in each such
transaction, shall be applied as follows:
(A) the amount of such net proceeds shall be
allocated between the Revolving Loan Commitments and the Term
Loan Commitments pro rata (rounded upwards or downwards, as the
case may be, to the nearest $1,000,000) based upon the amounts of
the Revolving Loan Commitments and the Term Loan Commitments;
(B) the Revolving Loan Commitments shall be
immediately and permanently reduced by an amount equal to the
amount of such net proceeds allocated to the Revolving Loan
Commitments, and the Borrower shall make any prepayments of the
Revolving Loans required by clause (iii) of this Section 2.05(b);
and
(C) the remainder of such net proceeds shall be
immediately applied to prepay the Term Loans, subject to
paragraph (c) below.
(ii) If at any time the commitment under the
Receivables Transaction shall be increased to an amount in excess
of $40,000,000, the Revolving Loan Commitments shall immediately
be automatically reduced by the amount of such excess.
(iii) The Borrower shall not at any time cause or
permit the aggregate outstanding balance of the Revolving Loans
to exceed the Maximum Revolving Loan Amount. If at any time such
outstanding balance shall exceed the Maximum Revolving Loan
Amount, the Borrower shall, without demand or notice, pay to the
Agent such amount as may be necessary to eliminate such excess,
and the Borrower shall make such payment on the Business Day on
which the Borrower learns or is notified of the excess, if the
Borrower so learns or is so notified prior to 11:00 a.m. (New
York time) on such day, and otherwise on the immediately
succeeding Business Day.
(c) Treatment of Term Loans. Notwithstanding
anything to the contrary in this Section 2.05, on or prior to any
date (a "Specified Stated Prepayment Date") specified for
prepayment of the Term Loans pursuant to Section 2.05(a) or (b),
the Borrower shall deliver a Prepayment Offer Notice to each Term
Loan Lender (with a copy to the Agent). Each Term Loan Lender
shall indicate its acceptance or rejection of such offer (and, in
the case of its acceptance, its Prepayment Acceptance Amount) by
delivering a Prepayment Offer Response Notice to the Agent and
the Borrower no later than four Business Days prior to the
Specified Prepayment Date set forth in the applicable Prepayment
Offer Notice. On such Specified Prepayment Date, (i) the
Borrower shall prepay each Term Loan Lender's Term Loans in a
principal amount equal to such Term Loan Lender's Prepayment
Share and (ii) the Revolving Loan Commitments shall be
automatically further reduced in an aggregate amount equal to the
Prepayment Amount less the aggregate principal amount of the Term
Loans prepaid pursuant to clause (i) above, and the Borrower
shall make any prepayments of the Revolving Loans required by
clause (iii) of Section 2.05(b). The Agent shall calculate the
amounts of the prepayments payable to the respective Lenders
required by this Section 2.05(c). During the period from any
Specified Stated Prepayment Date to the associated Specified
Prepayment Date, the Prepayment Amount available for prepayment
on such Specified Prepayment Date shall be held in a cash
collateral account with the Agent, as security for the Term
Loans, and shall be invested by the Agent, at the direction of
the Borrower, in Cash Equivalents. The procedures set forth
above in this Section 2.05(c) shall not apply in the case of any
prepayment in whole of the Term Loans; provided, that any such
prepayment in whole of the Term Loans shall be accompanied by a
prepayment fee equal to the Prepayment Fee Percentage (as defined
below) of the principal amount of Term Loans prepaid; such
prepayment fee shall be in addition to, and without limitation
of, any amounts payable pursuant to Section 2.08(d) in connection
with such prepayment. For purposes of this Section 2.05(c), the
"Prepayment Fee Percentage" applicable to prepayments in respect
of the Term Loans on any date during any period set forth below
shall be the percentage set forth opposite such period below.
Period Prepayment Fee Percentage
9/29/95 - 12/31/95 6.00%
1/1/96 - 3/31/96 5.25%
4/1/96 - 6/30/96 4.50%
7/1/96 - 9/30/96 3.75%
10/1/96 - 12/31/96 3.00%
1/1/97 - 3/31/97 2.25%
4/1/97 - 6/30/97 1.50%
7/1/97 - 9/30/97 0.75%
10/1/97 - thereafter 0.00%
2.06. Payments.
(a) Manner and Time of Payment. (i) All payments of
principal, interest, Reimbursement Obligations and fees hereunder
or any Letter of Credit payable to the Lenders shall be made
without condition or reservation of right, in Dollars and in
immediately available funds, delivered to the Agent at the
Agent's Payment Office not later than 1:00 p.m. (New York time)
on the date due; and funds received by the Agent after that time
and date shall be deemed to have been paid and received by the
Agent on the next succeeding Business Day. Payments actually
received by the Agent for the account of the Lenders shall be
paid to them promptly in like funds after receipt thereof by the
Agent.
(ii) Unless the Agent shall have received notice
from the Borrower prior to the date on which any payment is due
to the Lenders hereunder that the Borrower will not make such
payment in full, the Agent may assume that the Borrower has made
such payment in full to the Agent on such date, and the Agent
may, in reliance upon such assumption, cause to be distributed to
each Lender on such due date an amount equal to the amount then
due such Lender. If and to the extent the Borrower shall not
have so made such payment in full to the Agent, each Lender shall
repay to the Agent forthwith on demand the excess of the amount
distributed to such Lender over the amount, if any, paid by the
Borrower for the account of such Lender, together with interest
thereon at the Federal Funds Rate, for each day from the date
such amount is distributed to such Lender until the date such
Lender repays such amount to the Agent; provided, however, that
if any Lender shall fail to repay such amount within three
Business Days after demand therefor, such Lender shall, from and
after such third Business Day until payment is made to the Agent,
pay interest thereon at a rate per annum equal to the Base Rate.
(b) Apportionment of Payments. So long as there does
not exist an Event of Default, all payments of principal and
interest in respect of outstanding Loans, all payments of fees
constituting Obligations, and all payments in respect of any
other Obligations shall be allocated among such of the Lenders as
are entitled thereto, in proportion to their respective Pro Rata
Revolving Loan Shares or Pro Rata Term Loan Shares, as the case
may be, or otherwise as provided herein. After the occurrence
and during the continuance of an Event of Default, and after
notice by the Agent to the Borrower that payments and proceeds
shall be so applied, all payments remitted to the Agent and all
amounts and proceeds of Collateral received by the Agent shall be
applied, subject to the provisions of this Agreement, (i) first,
to pay Obligations in respect of any fees or indemnities then due
to the Agent, the Issuing Bank and the Lenders; (ii) second, to
pay Obligations in respect of expense reimbursements then due
under Section 12.03; (iii) third, to pay or prepay principal of
and interest on any outstanding Reimbursement Obligations and
Loans, and to pay (or to the extent such Obligations are
contingent, prepay or provide cash collateral in respect of)
Letter of Credit Obligations; provided that if sufficient funds
are not available to fund all payments to be made to the holders
of the Obligations described in this clause (iii), the available
funds shall be allocated to the payment of such Obligations
ratably, based on the proportion of each such holder's interest
in the aggregate outstanding Loans, Reimbursement Obligations and
other Letter of Credit Obligations (in each instance whether or
not due); and further, provided, that matured and, to the extent
permitted by law, unmatured interest-bearing Obligations shall,
in any event, be paid prior to prepayment or provision of cash
collateral for contingent Letter of Credit Obligations; (iv)
fourth, to the ratable payment of all other Obligations then due
and payable for expense reimbursements; (v) fifth, to pay
Obligations then due and payable in respect of the Interest Rate
Contracts, if any; and (vi) sixth, to the ratable payment of all
other Obligations due to any and all holders of Obligations.
The Agent shall promptly distribute to each Lender at
its primary address set forth in Schedule 1.01(a), or at such
other address as a Lender may request in writing, such funds as
it may be entitled to receive or as may be shown due to it in the
Agent's Loan Account, provided that the Agent shall in any event
not be bound to inquire into or determine the validity, scope or
priority of any interest or entitlement of any Lender or any
other holder of Obligations and may suspend all payments or seek
appropriate relief (including instructions from the Requisite
Lenders or an action in the nature of interpleader) in the event
of any doubt or dispute as to any apportionment or distribution
contemplated hereby. The order of priority herein is set forth
solely to determine the rights and priorities of the holders of
Obligations as among themselves and may at any time or from time
to time be changed by the Lenders as they may elect, in writing
in accordance with Section 12.08 (except that no amendment shall
require prepayment or provision of cash collateral for contingent
Letter of Credit Obligations unless (as provided in clause (iii)
of Section 2.06(b)) matured and certain interest-bearing
unmatured Obligations shall have been paid), without necessity of
notice to or consent of or approval by the Borrower or any other
Person.
(c) Payments on Non-Business Days. Whenever any
payment to be made by the Borrower hereunder shall be stated to
be due on a day which is not a Business Day, payments shall be
made on the next succeeding Business Day and such extension of
time shall be included in the computation of the payment of
interest hereunder and of any of the fees specified in Section
2.04, as the case may be.
(d) Payments by Lenders to the Agent. Unless the
Agent shall have been notified by any Lender prior to any Funding
Date that such Lender does not intend to make available to the
Agent such Lender's Loan on such Funding Date (except that in the
case of Base Rate Loans, the Agent shall have been so notified no
later than 1:00 p.m. (New York time) on the Funding Date), the
Agent may assume that such Lender has made such amount available
to the Agent on such Funding Date and the Agent in its sole
discretion may, but shall not be obligated to, make available to
the Borrower a corresponding amount on such Funding Date. If
such corresponding amount is not in fact made available to the
Agent by such Lender on or prior to a Funding Date, such Lender
agrees to pay and the Borrower agrees to repay severally to the
Agent forthwith on demand such corresponding amount together with
interest thereon, for each day from the date such amount is made
available to the Borrower until the date such amount is paid or
repaid to the Agent, at (A) in the case of such Lender, the
Federal Funds Rate for the first three Business Days and
thereafter at the Base Rate, and (B) in the case of the Borrower,
the interest rate applicable at the time to a Borrowing of Base
Rate Loans made on such Funding Date. If such Lender shall pay
to the Agent such corresponding amount, such amount so paid shall
constitute such Lender's Loan, and if both such Lender and the
Borrower shall have paid and repaid, respectively, such
corresponding amount, the Agent shall promptly pay over to the
Borrower such corresponding amount in same day funds, but the
Borrower shall remain obligated for all interest thereon.
Nothing in this Section 2.06(d) shall be deemed to relieve any
Lender of its obligation hereunder to make its Loan on any
Funding Date. Notwithstanding any provision of this Agreement to
the contrary, the Agent may apply all funds and proceeds of
Collateral available for the payment of any Obligations first to
repay any amount owing by any Lender to the Agent as a result of
such Lender's failure to fund its Loan as required hereunder.
2.07. Interest Periods. By giving notice as set forth in
Section 2.01(b), 2.02(b) or 2.03(c) with respect to a Borrowing
of, conversion into or continuation of Eurodollar Rate Loans, the
Borrower shall have the option, subject to the other provisions
of this Section 2.06 and Section 2.07, to specify an interest
period (each an "Interest Period") to apply to the Borrowing
described in such notice, which Interest Period shall be either a
1-, 2-, 3-, or 6-month period and, to the extent generally
available to each Revolving Loan Lender or Term Loan Lender, as
the case may be, a 9- or 12-month period; provided, that only 1-
month Interest Periods shall be available for Term Loans so long
as any amount of the Term Loans is held by Bank of America. The
determination of Interest Periods shall be subject to the
following provisions:
(a) In the case of immediately successive Interest
Periods, each successive Interest Period shall commence on the
day on which the next preceding Interest Period expires;
(b) If any Interest Period would otherwise expire on
a day which is not a Business Day, the Interest Period shall be
extended to expire on the next succeeding Business Day; provided
that if any such Interest Period would otherwise expire on a day
which is not a Business Day and no further Business Day occurs in
that month, that Interest Period shall expire on the immediately
preceding Business Day;
(c) The Borrower may not select an Interest Period in
respect of Revolving Loans which terminates later than the Final
Maturity Date, or in respect of Term Loans which terminates later
than the third anniversary of the Initial Funding Date; and
(d) Without the prior written consent of the Agent
and the Requisite Lenders, there shall be no more than five
Interest Periods under this Agreement at any time.
2.08. Special Provisions Governing Eurodollar Rate Loans.
Notwithstanding other provisions of this Agreement, the following
provisions shall govern with respect to Eurodollar Rate Loans as
to the matters covered:
(a) Determination of Interest Rate. As soon as
practicable two Business Days prior to the Funding Date or date
of conversion or continuation, the Agent shall determine (which
determination shall, absent manifest error, be presumptively
correct) the interest rate which shall apply to the Eurodollar
Rate Loans for which an interest rate is then being determined
for the applicable Interest Period and shall promptly give notice
thereof (in writing or by telephone confirmed in writing) to the
Borrower and to each Lender.
(b) Interest Rate Unascertainable, Inadequate or
Unfair. With respect to any Interest Period, if (i) the
Reference Bank is offering deposits in Dollars (in the applicable
amounts) in the London interbank Eurodollar market for such
Interest Period, or (ii) the Agent reasonably determines that
adequate and fair means do not exist for ascertaining the applica
ble interest rate on the basis provided for in the definition of
Eurodollar Rate, for any reason other than the failure of the
Reference Bank to offer deposits in Dollars in the relevant
market, then the Agent shall forthwith give notice thereof to the
Borrower, whereupon until the Agent has determined that the
circumstances giving rise to such suspension no longer exist, (a)
the right of the Borrower to elect to have Loans bear interest
based upon the Eurodollar Rate, shall be suspended, and (b) each
outstanding Eurodollar Rate Loan, shall be converted into a Base
Rate Loan or a Eurodollar Rate Loan not covered by the notice
described above (as may be designated by the Borrower) on the
last day of the then current Interest Period therefor,
notwithstanding any prior election by the Borrower to the
contrary.
(c) Illegality. (i) In the event that on any date
any Lender shall have determined (which determination shall, in
the absence of manifest error, be final and conclusive and
binding upon all parties) that the making or continuation of any
Eurodollar Rate Loan has become unlawful by compliance by that
Lender in good faith with any law, governmental rule, regulation
or order of any Governmental Authority (whether or not having the
force of law and whether or not failure to comply therewith would
be unlawful), then, and in any such event, such Lender shall
promptly give notice (by teletransmission or by telephone
promptly confirmed in writing) to the Borrower and the Agent of
that determination and the reasons therefor.
(ii) Upon the giving of the notice referred to in
Section 2.08(c)(i), (A) the Borrowers right to request of such
Lender and such Lender's obligation to make Eurodollar Rate Loans
shall be immediately suspended, and such Lender shall make a
Loan, as part of any requested Borrowing of Eurodollar Rate
Loans, as a Base Rate Loan or as a Eurodollar Rate Loan not
covered by the notice described in Section 2.08(c)(i) (as
designated by the Borrower), which Base Rate Loan or Eurodollar
Rate Loan shall, for all purposes, be considered a part of such
Borrowing, and (B) if the affected Eurodollar Rate Loan or Loans
are then outstanding, the Borrower shall immediately (or, if
permitted by applicable law, no later than the date permitted
thereby, upon at least one Business Day's written notice to the
Agent and the affected Lender) convert each such Loan into a Base
Rate Loan or a Eurodollar Rate Loan not covered by such notice.
If at any time notice is given under Section 2.08(c)(i) by one or
more Lenders, but not by all of them, the provisions of this
Section 2.08(c)(ii) shall apply only in favor of the Lenders
which gave such notice.
(iii) In the event that a Lender determines at any
time following its giving of a notice referred to in Section
2.08(c)(i) that such Lender may lawfully make Eurodollar Rate
Loans of the type(s) referred to in such notice, such Lender
shall promptly give notice (by facsimile or by telephone promptly
confirmed in writing) to the Borrower and the Agent of that
determination, whereupon the Borrower's right to request of such
Lender and such Lender's obligation to make Eurodollar Rate Loans
of such type(s) shall be restored.
(d) Compensation. In addition to such amounts as are
required to be paid by the Borrower pursuant to Sections 2.03(a),
(d) and (f), the Borrower shall compensate each Lender, upon
demand, for all losses, expenses and liabilities (including any
loss or expense incurred by reason of the liquidation or reemploy
ment of deposits or other funds acquired by such Lender to fund
or maintain such Lender's Eurodollar Rate Loans to the Borrower)
which such Lender may sustain (i) if for any reason a Borrowing
of, conversion into or continuation of Eurodollar Rate Loans does
not occur on a date specified therefor in a Notice of Borrowing
or a Notice of Conversion/Continuation or in a telephonic request
for borrowing or conversion/continuation or a successive Interest
Period does not commence after notice therefor is given pursuant
to Section 2.03(c), (ii) if any prepayment or payment of any
Eurodollar Rate Loan (including any prepayment pursuant to
Section 2.05) occurs for any reason on a date which is not the
last day of the applicable Interest Period, (iii) as a
consequence of any required conversion of a Eurodollar Rate Loan
to a Base Rate Loan as a result of any of the events indicated in
Section 2.08(c), or (iv) as a consequence of any other failure by
the Borrower to prepay or repay Eurodollar Rate Loans when
required by the terms of this Agreement. Such Lender shall
deliver to the Borrower with a copy to the Agent, as a condition
of the Borrower's obligation to compensate such Lender, a written
statement as to such losses, expenses and liabilities which
statement, in the absence of manifest error, shall be conclusive
as to such amounts.
(e) Quotation of Eurodollar Rate. If the Reference
Bank shall have failed to provide offered quotations to the Agent
in accordance with the definition of "Eurodollar Rate", the Agent
shall give the Borrower and each Lender prompt notice thereof and
the Loans requested shall be made or continued as, or converted
into, Base Rate Loans.
(f) Booking of Eurodollar Rate Loans. Any Lender may
make, carry or transfer Eurodollar Rate Loans at, to, or for the
account of, any of its branch offices, agencies or the office of
an Affiliate of that Lender; provided that no such Lender shall
be entitled to receive any greater amount under Section 2.03(f)
or Section 2.09 as a result of the transfer of any such Loan than
such Lender would be entitled to immediately prior thereto unless
(i) such transfer occurred at a time when circumstances giving
rise to the claim for such greater amount did not exist and were
not reasonably foreseeable by such Lender, or (ii) such claim
would have arisen even if such transfer had not occurred.
2.09. Taxes.
(a) Any and all payments by the Borrower hereunder
shall be made, in accordance with Section 2.06, free and clear of
and without deduction for any and all present or future taxes,
levies, imposts, deductions, charges, or withholdings, and all
liabilities with respect thereto including those arising after
the date hereof as a result of the adoption of or any change in
any law, treaty, rule, regulation, guideline or determination of
a Governmental Authority or any change in the interpretation or
application thereof by a Governmental Authority but excluding, in
the case of each Lender and the Agent, taxes imposed on its
income and franchise taxes imposed on it by the United States of
America or any Governmental Authority (including Puerto Rico)
and, in the case of each Lender, taxes imposed on its income and
franchise taxes imposed on it as a result of making any Loan, by
the Governmental Authority of the jurisdiction of such Lender's
Applicable Lending Office (all such non-excluded taxes, levies,
imposts, deductions, charges, withholdings, and liabilities which
a Lender determines to be applicable to this Agreement, the
Commitments, the Loans or the Letters of Credit being hereinafter
referred to as "Taxes"). If the Borrower shall be required by
law to deduct any Taxes from or in respect of any sum payable
hereunder to any Lender or the Agent, (i) so long as such Lender
or the Agent is in compliance with Section 2.09(e), the sum
payable shall be increased as may be necessary so that after
making all required deductions (including deductions applicable
to additional sums payable under this Section 2.09) such Lender
or the Agent (as the case may be) receives an amount equal to the
sum it would have received had no such deductions been made, (ii)
the Borrower shall make such deductions, and (iii) the Borrower
shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law.
If a withholding tax of the United States of America or any other
Governmental Authority shall be or become applicable (y) after
the date of this Agreement, to such payments by the Borrower made
to the Applicable Lending Office or any other office that a
Lender specified on Schedule 1.01(a) to this Agreement may claim
as its Applicable Lending Office or (z) after such Lender's
selection and designation of any other Applicable Lending Office,
to such payments made to such other Applicable Lending Office,
such Lender shall, in good faith, use its best efforts to make,
fund and maintain its Loans, and to make, fund and maintain its
obligations under the Letters of Credit, through another
Applicable Lending Office of such Lender in another jurisdiction
so as to reduce the Borrower's liability hereunder, if the
making, funding or maintenance of such Loans or obligations under
the Letters of Credit through such other Applicable Lending
Office of such Lender does not, in the judgment of such Lender,
otherwise materially adversely affect such Loans, obligations
under the Letters of Credit or such Lender.
(b) In addition, the Borrower agrees to pay any
present or future stamp or documentary taxes or any other excise
or property taxes, charges, or similar levies which arise from
any payment made hereunder, from the issuance of Letters of
Credit hereunder, or from the execution, delivery or registration
of, or otherwise with respect to, this Agreement, the
Commitments, the Loans or the Letters of Credit (hereinafter
referred to as "Other Taxes").
(c) The Borrower will indemnify each Lender and the
Agent for the full amount of Taxes and Other Taxes (including any
Taxes or Other Taxes imposed by any Governmental Authority on
amounts payable under this Section 2.09) paid by such Lender or
the Agent (as the case may be) and any liability (including
penalties, interest, and expenses) arising therefrom or with
respect thereto, whether or not such Taxes or Other Taxes were
correctly or legally asserted. This indemnification shall be
made within 30 days after the date such Lender or the Agent (as
the case may be) makes written demand therefor. A certificate as
to any additional amount payable to any Lender under this Section
2.09 submitted to such Borrower and the Agent (if a Lender is so
submitting) by such Lender or the Agent shall show in reasonable
detail the amount payable and the calculations used to determine
such amount and shall, absent manifest error, be final,
conclusive and binding upon all parties hereto. Each Lender
agrees that, to the extent that such Lender is entitled to claim
an exemption in respect of all or a portion of any Taxes which
are otherwise required to be paid or deducted or withheld
pursuant to this Section 2.09 in respect of any payments under
this Agreement such Lender shall within a reasonable time after
receiving written request by the Borrower provide the Borrower
with such certificates as such Lender in good faith may deem
appropriate to obtain the benefits of such exemption. With
respect to such deduction or withholding for or on account of any
Taxes and to confirm that all such Taxes have been paid to the
appropriate Governmental Authorities, the Borrower shall promptly
(and in any event not later than 30 days after receipt) furnish
to each Lender such certificates, receipts and other documents as
may be required (in the judgment of such Lender) to establish any
tax credit to which such Lender may be entitled.
(d) Within 30 days after the date of any payment of
Taxes or Other Taxes by the Borrower, the Borrower will furnish
to the Agent, at its address referred to in Section 12.08, the
original or a certified copy of a receipt evidencing payment
thereof.
(e) Each Lender (or transferee of any Lender) that is
not a citizen or resident of the United States of America, a
corporation, partnership or other entity created or organized in
or under the laws of the United States of America, or any estate
or trust that is subject to federal income taxation regardless of
the source of its income (a "Non-U.S. Lender") shall deliver to
the Borrower and the Agent (or in the case of a participant, to
the Lender from which the related participation shall have been
purchased) two copies of either U.S. Internal Revenue Service
Form 1001 or Form 4224, or, in the case of a Non-U.S. Lender
claiming exemption from U.S. federal withholding tax under
Section 871(h) or 881(c) of the Code with respect to payments of
"portfolio interest", a Form W-8, or any subsequent versions
thereof or successors thereto (and, if such Non-U.S. Lender
delivers a Form W-8, an annual certificate representing that such
Non-U.S. Lender (i) is not a "bank" for purposes of Section
881(c) of the Code (and is not subject to regulatory or other
legal requirements as a bank in any jurisdiction, and has not
been treated as a bank in any filing with or submission made to
any Governmental Authority or rating agency), (ii) is not a
10-percent shareholder (within the meaning of Section
871(h)(3)(B) of the Code) of the Borrower and (iii) is not a
controlled foreign corporation related to the Borrower (within
the meaning of Section 864(d)(4) of the Code)), properly
completed and duly executed by such Non-U.S. Lender claiming
complete exemption from U.S. federal withholding tax on all
payments by the Borrower under this Agreement and the other Loan
Documents, along with such other additional forms as the Borrower
or the Agent may reasonably request to establish the availability
of such exemption. Such forms shall be delivered by each
Non-U.S. Lender on or before the date it becomes a party to this
Agreement (or, in the case of any participant, on or before the
date such participant purchases the related participation) and on
or before the date, if any, such Non-U.S. Lender changes its
Applicable Lending Office by designating a different lending
office (a "New Lending Office"). In addition, each Non-U.S.
Lender shall deliver such forms promptly upon the obsolescence or
invalidity of any form previously delivered by such Non-U.S.
Lender. Each Non-U.S. Lender shall promptly notify the Borrower
at any time it determines that it is no longer in a position to
provide any previously delivered certificate to the Borrower (or
any other form of certification adopted by the U.S. taxing
authorities for such purpose). Notwithstanding any other
provision of Section 2.09, a Non-U.S. Lender shall not be
required to deliver any form pursuant to this Section 2.09(e)
that such Non-U.S. Lender is not legally able to deliver.
(f) The Borrower shall not be required to indemnify
any Non-U.S. Lender, or to pay any additional amounts to any Non-
U.S. Lender, in respect of United States federal withholding tax
pursuant to paragraph (a) or (c) above to the extent that the
obligation to withhold amounts with respect to United States
federal withholding tax existed on the date such Non-U.S. Lender
became a party to this Agreement (or, in the case of a
participant, on the date such participant became a transferee of
a participation interest hereunder) or, with respect to payments
to a New Lending Office, the date such Non-U.S. Lender designated
such New Lending Office with respect to a Loan.
(g) If the IRS or any other Governmental Authority of
the United States or of any other jurisdiction asserts a claim
that the Agent or the Borrower did not properly withhold tax from
amounts paid to or for the account of any Lender (because the
appropriate form was not delivered, was not properly executed, or
because such Lender failed to notify the Agent of a change in
circumstances which rendered the exemption from withholding tax
ineffective or for any other reason), such Lender shall indemnify
the Agent and/or the Borrower, as applicable, fully for all
amounts paid, directly or indirectly, by the Agent and/or the
Borrower, as applicable, as tax or otherwise, including penalties
and interest, and including any taxes imposed by any jurisdiction
on the amounts payable to the Agent or the Borrower, as
applicable, under this Section 2.09, together with all costs and
expenses, including, legal fees, incurred by the Agent or the
Borrower.
(h) Without prejudice to the survival of any other
agreement of the Borrower hereunder, the agreements and
obligations of the Borrower contained in this Section 2.09 shall
survive the payment in full of principal and interest hereunder,
the termination of the Letters of Credit and the termination of
this Agreement.
2.10. Increased Capital. If any Lender or the Issuing
Bank determines that either (a) the introduction of or any change
in any law, order or regulation or in the interpretation or
administration of any law, order or regulation by any
Governmental Authority charged with the interpretation or
administration thereof after the date hereof or (b) compliance
with any guideline or request issued or made after the date
hereof from any central bank or other Governmental Authority
(whether or not having the force of law) has or would have the
effect of reducing the rate of return on the capital of such
Lender or the Issuing Bank or any corporation controlling such
Lender or the Issuing Bank, as a consequence of or with reference
to such Lender's Commitment or its making or maintaining Loans or
the Issuing Bank's issuance or maintenance of, or such Lender's
participation in any Letter of Credit, below the rate which the
Lender or the Issuing Bank or such other corporation could have
achieved but for such compliance (taking into account the
policies of such Lender or the Issuing Bank or corporation with
regard to capital), then the Borrower shall from time to time,
upon demand by such Lender or the Issuing Bank (with a copy of
such demand to the Agent), pay to such Lender or the Issuing Bank
additional amounts sufficient to compensate such Lender or other
corporation for such reduction, upon receipt by the Borrower
(with a copy to the Agent) of a certificate as to such amounts,
by such Lender or the Issuing Bank, setting forth in reasonable
detail the basis for, and the calculations used by such Lender or
the Issuing Bank in determining, any such amounts. Such
certificate, in the absence of manifest error shall be conclusive
and binding for all purposes. Each Lender and the Issuing Bank
agree promptly to notify the Borrower and the Agent of any
circumstances that would cause the Borrower to pay additional
amounts pursuant to this Section 2.10, provided that the failure
to give such notice shall not affect the Borrower's obligation to
pay such additional amounts hereunder.
2.11. Use of Proceeds of the Loans. The proceeds of the
Loans may be used for general corporate purposes.
2.12. Authorized Officers of the Borrower. The Borrower
shall notify the Agent in writing of the names of the officers
and employees authorized to request Loans and Letters of Credit
and to request a conversion/continuation of any Loan and shall
provide the Agent with a specimen signature of each such officer
or employee. The Agent shall be entitled to rely conclusively on
such officer's or employee's authority to request such Loan or
Letter of Credit or such conversion/continuation until the Agent
receives written notice to the contrary. The Agent shall have no
duty to verify the authenticity of the signature appearing on any
written Notice of Borrowing or Notice of Conversion/Continuation
and, with respect to an oral request for such a Loan or Letter of
Credit or such conversion/continuation, the Agent shall have no
duty to verify the identity of any person representing himself as
one of the officers or employees authorized to make such request
on behalf of the Borrower. Neither the Agent nor any Lender
shall incur any liability to the Borrower in acting upon any
telephonic notice referred to above which the Agent believes in
good faith to have been given by a duly authorized officer or
other person authorized to borrow on behalf of the Borrower.
2.13. Replacement of Lender in Event of Adverse Condition.
If the Borrower becomes obligated to pay additional amounts to
any Lender pursuant to Sections 2.03(f), 2.08(d), 2.09 or 2.10 as
a result of any condition described in such Sections which is not
generally applicable to all Lenders, then, unless such Lender has
theretofore taken steps to remove or cure, and has removed or
cured, the conditions creating the cause for such obligation to
pay such additional amounts, the Borrower may designate another
bank which is reasonably acceptable to the Agent and the Issuing
Bank (such bank being herein called a "Replacement Lender") to
purchase for cash all of the Obligations of such Lender and all
of such Lender's rights hereunder, without recourse to or
warranty by, or expense to, such Lender for a purchase price
equal to the outstanding principal amount payable to such Lender
plus any accrued but unpaid interest and accrued but unpaid
commitment and other fees, expense reimbursements and indemnities
in respect of that Lender's Commitment. Such Lender shall
consummate such sale in accordance with such terms (and, if such
Lender is an Issuing Bank, such other terms as may be necessary
to compensate fully such Lender) within a reasonable time not
exceeding 60 days from the date the Borrower designated a
Replacement Lender, and upon compliance with the provisions of
Section 12.01 such Lender shall no longer be a party hereto or
have any obligations or rights hereunder (except rights which,
pursuant to the provisions of this Agreement, survive the
termination of this Agreement and the repayment of the Loans),
and the Replacement Lender shall succeed to such obligations and
rights.
ARTICLE III
Letters of Credit
3.01. Obligation to Issue. (a) Subject to the terms and
conditions set forth in this Agreement, the Issuing Bank hereby
agrees to issue, and each Revolving Loan Lender agrees to
participate in, one or more Letters of Credit for the account of
the Borrower, up to an aggregate face amount at any one time
outstanding equal to the Revolving Loan Commitments from time to
time during the period commencing on the Initial Funding Date and
ending on the Business Day which is five Business Days prior to
the Final Maturity Date.
(b) The Revolving Loan Lenders acknowledge that the
Existing Letters of Credit have been issued for the account of
the Borrower prior to the Initial Funding Date and agree to
participate in such Letters of Credit to the same extent and on
the same conditions as if such Letters of Credit had been issued
pursuant to paragraph (a) above.
3.02. Types and Amounts. The Issuing Bank shall not issue
any Letter of Credit at any time:
(a) if the aggregate maximum amount then available
for drawing under Letters of Credit issued by the Issuing Bank,
after giving effect to the issuance of such Letter of Credit,
would exceed any limit imposed by law or regulation upon the
Issuing Bank;
(b) if, immediately after the issuance of such Letter
of Credit, the aggregate principal amount of Letter of Credit
Obligations then existing (which amount shall be calculated
without giving effect to the participation of the Revolving Loan
Lenders pursuant to Section 3.06) would exceed the Revolving Loan
Commitments then in effect less the principal amount of all
outstanding Revolving Loans;
(c) which has an expiration date (A) more than one
year after the date of issuance, for Standby Letters of Credit
(provided that a Standby Letter of Credit may provide for an
annual renewal on the terms set forth in Section 3.04(c)) or more
than 180 days after the date of issuance (subject to extension
for a maximum period of 60 days), for Commercial Letters of
Credit, or (B) after four Business Days immediately preceding the
Final Maturity Date;
(d) if the Issuing Bank has received written notice
from (i) Lenders whose Pro Rata Revolving Loan Shares, in the
aggregate, are more than 50%, (ii) the Agent or (iii) the
Borrower, on or prior to the Business Day prior to the requested
date of issuance of such Letter of Credit, that one or more of
the applicable conditions contained in Article IV is not then
satisfied; or
(e) if any requested Commercial Letter of Credit does
not provide for drafts or any Letter of Credit is not otherwise
in form and substance acceptable to the Issuing Bank, or if the
issuance of the requested Letter of Credit would violate any
applicable policies of the Issuing Bank.
3.03. Conditions. In addition to being subject to the
satisfaction of the conditions precedent contained in Section
4.02, the obligation of the Issuing Bank to issue any Letter of
Credit is subject to the condition that as of the date of
issuance, no order, judgment or decree of any court, arbitrator
or other Governmental Authority shall purport by its terms to
enjoin or restrain the Issuing Bank from issuing such Letter of
Credit and no law, rule or regulation applicable to the Issuing
Bank and no request or directive (whether or not having the force
of law and whether or not the failure to comply therewith would
be unlawful) from any Governmental Authority with jurisdiction
over the Issuing Bank shall prohibit or request the Issuing Bank
to refrain from the issuance of Letters of Credit generally or
the issuance of such Letter of Credit.
3.04. Issuance of Letters of Credit.
(a) The Borrower shall give the Issuing Bank notice
(i) by facsimile (confirmed by delivery of the original executed
Letter of Credit application to the Issuing Bank not later than
one Business Day thereafter) or (ii) by Microtrade or similar
system not later than 12:00 noon (New York time) one Business Day
preceding the requested issuance of a Letter of Credit under this
Agreement, or such shorter notice as may be acceptable to the
Issuing Bank. Such notice shall be irrevocable and shall specify
(A) the stated amount of the Letter of Credit requested to be
issued, (B) if notice is given by facsimile, the effective date
(which day shall be a Business Day) of issuance of such Letter of
Credit, (C) the date on which such Letter of Credit is to expire
(which date shall be a Business Day and shall be subject to
paragraph (c) of Section 3.02), (D) the Person for whose benefit
the requested Letter of Credit is to be issued, (E) in the case
of Standby Letters of Credit, the full text of any certificate to
be presented by the beneficiary in case of any drawing thereunder
and (F) such other matters as the Issuing Bank may require.
(b) The Issuing Bank shall not extend or amend any
Letter of Credit if the issuance of a new Letter of Credit having
the same terms as such Letter of Credit as so extended or amended
would be prohibited by Section 3.02. Any request for amendment
to any previously issued Letter of Credit shall be received by
the Issuing Bank not later than 3:00 p.m. (New York time) one
Business Day prior to the date of the proposed amendment (i) by
facsimile confirmed by delivery of the original executed
application for amendment not later than one Business Day
thereafter or (ii) by Microtrade or similar system. Each written
request for an amendment to a previously issued Letter of Credit
made by facsimile or by Microtrade or similar system shall be in
the form of the relevant letter of credit application signed by
the Borrower and shall not request an extension beyond four
Business Days immediately preceding the Final Maturity Date.
Notwithstanding any provision of any letter of credit application
to the contrary, in the event of any conflict between the terms
of any such letter of credit application and the terms of this
Agreement, the terms of this Agreement shall control with respect
to events of default, representations and warranties, and
covenants, except that such letter of credit application may
provide for further warranties relating specifically to the
transaction or affairs underlying such Letter of Credit.
(c) The Issuing Bank and the Revolving Loan Lenders
agree that, while a Standby Letter of Credit is outstanding and
prior to the Final Maturity Date, at the option of the Borrower
and upon the written request of the Borrower received by the
Issuing Bank at least five days (or such shorter time as the
Issuing Bank may agree in a particular instance in its sole
discretion) prior to the proposed date of notification of
renewal, the Issuing Bank shall be entitled to authorize the
automatic renewal of any Letter of Credit issued by it. Each
such request for renewal of a Letter of Credit shall be made by
Microtrade or similar system or by facsimile, confirmed
immediately in an original writing, and shall specify in form and
detail satisfactory to the Issuing Bank: (i) the Letter of Credit
to be renewed; (ii) the proposed date of notification of renewal
of the Letter of Credit (which shall be a Business Day); (iii)
the revised expiry date of the Letter of Credit; and (iv) such
other matters as the Issuing Bank may require. The Issuing Bank
shall not so renew any Letter of Credit if: (A) the Issuing Bank
would have no obligation at such time to issue or amend such
Letter of Credit in its renewed form under the terms of Section
3.02 or 3.03; or (B) the beneficiary of any such Letter of Credit
does not accept the proposed renewal of the Letter of Credit. If
any outstanding Existing Letter of Credit shall provide that it
shall be automatically renewed unless the beneficiary thereof
receives notice from the Issuing Bank that such Letter of Credit
shall not be renewed, and if at the time of renewal the Issuing
Bank would be entitled to authorize the automatic renewal of such
Letter of Credit in accordance with this paragraph (c) upon the
request of the Borrower, but the Issuing Bank shall not have
received any amendment application from the Borrower with respect
to such renewal or other written direction by the Borrower with
respect thereto, the Issuing Bank shall nonetheless be permitted
to allow such Letter of Credit to renew, and the Borrower and the
Revolving Loan Lenders hereby authorize such renewal, and,
accordingly, the Issuing Bank shall be deemed to have received an
amendment application from the Borrower requesting such renewal.
(d) The Issuing Bank shall notify the Agent of (i)
each request for issuance or amendment to confirm availability
and (ii) each issuance and amendment of a Letter of Credit and
the amount and expiration date thereof on the date such Letter of
Credit is issued or amended and of each payment under a Letter of
Credit and the amount thereof on the date of such payment. The
Agent shall notify the Revolving Loan Lenders, on a weekly basis,
of each issuance of a Letter of Credit.
3.05. Reimbursement Obligations; Duties of the Issuing
Bank.
(a) (i) The Borrower shall reimburse the Issuing
Bank (and the Issuing Bank shall notify the Agent promptly of
such reimbursement) for drawings under a Letter of Credit issued
by it no later than 1:00 p.m. (New York time) on each date that
any amount is paid by the Issuing Bank under any Letter of Credit
in an amount equal to the amount so paid by the Issuing Bank; and
(ii) any Reimbursement Obligation with respect to
any Letter of Credit shall bear interest from the date of the
relevant drawing at the interest rate applicable to Base Rate
Loans until the first Business Day after the date on which the
Issuing Bank gives notice of such drawing to the Borrower and
thereafter at the interest rate for past due Base Rate Loans in
accordance with Section 2.03(d).
(b) No action taken or omitted to be taken by the
Issuing Bank under or in connection with any Letter of Credit
shall put the Issuing Bank under any resulting liability to any
Revolving Loan Lender or relieve such Revolving Loan Lender of
its obligations hereunder to the Issuing Bank except in the event
of the Issuing Bank's gross negligence or wilful misconduct. In
determining whether to pay under any Letter of Credit, the
Issuing Bank shall have no obligation to the Revolving Loan
Lenders other than to confirm that any documents required to be
delivered under such Letter of Credit appear to have been
delivered and that they appear on their face to comply with the
requirements of such Letter of Credit.
(c) The obligations of the Borrower under this
Agreement and any Letter of Credit to reimburse the Issuing Bank
for a drawing under a Letter of Credit, and to repay any drawing
under a Letter of Credit, shall be unconditional and irrevocable,
and shall be paid strictly in accordance with the terms of this
Agreement and such Letter of Credit under all circumstances,
including the following:
(i) any lack of validity or enforceability of this
Agreement or any Letter of Credit;
(ii) any change in the time, manner or place of
payment of, or in any other term of, all or any of the
obligations of the Borrower in respect of any Letter of Credit or
any other amendment or waiver of or any consent to departure from
all or any Letter of Credit;
(iii) the existence of any claim, set-off, defense
or other right that the Borrower may have at any time against any
beneficiary or any transferee of any Letter of Credit (or any
Person for whom any such beneficiary or any such transferee may
be acting), the Issuing Bank or any other Person, whether in
connection with this Agreement, the transactions contemplated
hereby or by the Letter of Credit or any unrelated transaction;
(iv) any draft, demand, certificate or other
document presented under any Letter of Credit proving to be
forged, fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect; or
any loss or delay in the transmission or otherwise of any
document required in order to make a drawing under any Letter of
Credit;
(v) any payment by the Issuing Bank under any
Letter of Credit against presentation of a draft or certificate
that does not strictly comply with the terms of any Letter of
Credit; or any payment made by the Issuing Bank under any Letter
of Credit to any Person purporting to be a trustee in bankruptcy,
debtor-in-possession, assignee for the benefit of creditors,
liquidator, receiver or other representative of or successor to
any beneficiary or any transferee of any Letter of Credit,
including any arising in connection with any insolvency
proceeding;
(vi) any exchange, release or non-perfection of any
collateral, or any release or amendment or waiver of or consent
to departure from any other guarantee, for all or any of the
obligations of the Borrower in respect of any Letter of Credit;
or
(vii) any other circumstance or happening
whatsoever, whether or not similar to any of the foregoing,
including any other circumstance that might otherwise constitute
a defense available to, or a discharge of, the Borrower or a
guarantor.
3.06. Participations.
(a) Immediately upon issuance by the Issuing Bank of
any Letter of Credit for the account of the Borrower in
accordance with the procedures set forth in this Article III,
each Revolving Loan Lender shall be deemed to have irrevocably
and unconditionally purchased and received from the Issuing Bank,
without recourse or warranty, an undivided interest in the amount
of such Lender's Pro Rata Revolving Loan Share in such Letter of
Credit (including all obligations of the Borrower with respect
thereto other than amounts owing to the Issuing Bank under
Section 3.08(b)) and any security therefor or guaranty pertaining
thereto.
(b) If the Issuing Bank makes any payment under any
Letter of Credit and the Borrower does not repay such amount to
the Issuing Bank pursuant to Section 3.05(a) or 3.07, the Issuing
Bank shall promptly notify the Agent and the Agent shall promptly
notify each Revolving Loan Lender of such failure, and each
Revolving Loan Lender shall promptly and unconditionally pay to
the Agent for the account of the Issuing Bank the amount of such
Lender's Pro Rata Revolving Loan Share of such payment, in
Dollars and in immediately available funds, and the Agent shall
promptly pay such amount, and any other amounts received by the
Agent for the Issuing Bank's account pursuant to this Section
3.06(b), to the Issuing Bank. If the Agent so notifies such
Revolving Loan Lender prior to 11:00 a.m. (New York time) on any
Business Day, such Revolving Loan Lender shall make available to
the Agent for the account of the Issuing Bank its Pro Rata
Revolving Loan Share of the amount of such payment on such
Business Day in Dollars and in immediately available funds at the
Agent's Payment Office. If and to the extent such Revolving Loan
Lender shall not have so made its Pro Rata Revolving Loan Share
of the amount of such payment available to the Agent for the
account of the Issuing Bank, such Revolving Loan Lender agrees to
pay to the Agent for the account of the Issuing Bank forthwith on
demand such amount together with interest thereon, for each day
from the date such payment was first due until the date such
amount is paid to the Agent for the account of the Issuing Bank,
at the Federal Funds Rate for three Business Days and then at the
Base Rate. The failure of any Revolving Loan Lender to make
available to the Agent for the account of the Issuing Bank its
Pro Rata Revolving Loan Share of any such payment shall not
relieve any other Revolving Loan Lender of its obligation
hereunder to make available to the Agent for the account of the
Issuing Bank its Pro Rata Revolving Loan Share of any payment on
the date such payment is to be made.
(c) Whenever the Issuing Bank receives a payment from
the Borrower on account of a Reimbursement Obligation, including
any interest thereon, as to which the Agent has previously
received payments from the Revolving Loan Lenders for the account
of the Issuing Bank pursuant to this Section 3.06, it shall
promptly pay to the Agent at the Agent's Payment Office and the
Agent shall promptly pay to each Revolving Loan Lender which has
funded its participating interest therein in Dollars and in the
kind of funds so received, an amount equal to such Lender's Pro
Rata Revolving Loan Share thereof. Each such payment shall be
made by the Issuing Bank or the Agent, as the case may be, on the
Business Day on which such Person receives the funds paid to such
Person pursuant to the preceding sentence, if received prior to
11:00 a.m. (New York time) on such Business Day, and otherwise on
the next succeeding Business Day.
(d) Upon the request of any Revolving Loan Lender,
the Issuing Bank shall furnish to such Revolving Loan Lender
copies of any Letter of Credit or Letter of Credit application
form to which the Issuing Bank is party and such other
documentation as may reasonably be requested by such Revolving
Loan Lender.
(e) The obligations of a Revolving Loan Lender to
make payments to the Agent for the account of the Issuing Bank
with respect to a Letter of Credit issued on behalf of the
Borrower in accordance with the terms hereof shall be
irrevocable, shall not be subject to any qualification or
exception whatsoever (except in the event of the Issuing Bank's
gross negligence or wilful misconduct), and shall be honored in
accordance with the terms and conditions of this Agreement under
all circumstances (subject to Section 3.02), including any of the
following circumstances:
(i) any lack of validity or enforceability of this
Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or
other right which the Borrower may have at any time against a
beneficiary named in a Letter of Credit or any transferee of any
Letter of Credit (or any Person for whom any such transferee may
be acting), the Agent, the Issuing Bank, any Lender, or any other
Person, whether in connection with this Agreement, any Letter of
Credit, the transactions contemplated herein or any unrelated
transactions (including any underlying transactions between the
Borrower and the beneficiary named in any Letter of Credit);
(iii) any draft, certificate of any other document
presented under the Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for
the performance or observance of any of the terms of any of the
Loan Documents;
(v) any failure by the Agent or the Issuing Bank to
make any reports required pursuant to Section 3.09; or
(vi) the occurrence of any Event of Default or
Potential Event of Default.
3.07. Payment of Reimbursement Obligations.
(a) The Borrower agrees to pay to the Issuing Bank
the amount of all Reimbursement Obligations, interest and other
amounts payable to the Issuing Bank under or in connection with
any Letter of Credit issued on behalf of the Borrower immediately
when due, irrespective of any claim, setoff, defense or other
right which the Borrower may have at any time against the Issuing
Bank or any other Person.
(b) In the event any payment by the Borrower received
by the Issuing Bank with respect to such Letter of Credit and
distributed by the Agent to the Revolving Loan Lenders on account
of their participations is thereafter set aside, avoided or
recovered from the Issuing Bank in connection with any
receivership, liquidation or bankruptcy proceeding or otherwise,
each Revolving Loan Lender which received such distribution
shall, upon demand by the Issuing Bank, contribute such Lender's
Pro Rata Revolving Loan Share of the amount set aside, avoided or
recovered together with interest at the rate required to be paid
by the Issuing Bank upon the amount required to be repaid by it.
3.08. Compensation for Letters of Credit.
(a) Letter of Credit Fees. (i) The Borrower shall
pay with respect to each Letter of Credit issued as a Standby
Letter of Credit quarterly in arrears, on the fifteenth day of
each January, April, July and October beginning after the Initial
Funding Date and also on the Termination Date, a Letter of Credit
Fee equal to the percentage per annum set forth below, applied
(on the basis of actual days elapsed in a 360-day year) to the
maximum amount available to be drawn under such Standby Letter of
Credit from day to day during the previous quarter. This fee
shall be paid to the Agent, for the account of the Revolving Loan
Lenders in proportion to their respective Pro Rata Revolving Loan
Shares.
Pricing Ratio Standby Letter of Credit Fee
Level I Status .75%
Level II Status 1.00%
Level III Status 1.50%
Level IV Status 1.75%
Level V Status 2.25%
(ii) The Borrower shall pay with respect to each
Letter of Credit issued as a Commercial Letter of Credit
quarterly in arrears on the fifteenth day of each January, April,
July and October beginning after the Initial Funding Date and
also on the Termination Date, a Letter of Credit Fee equal to
0.25% per annum applied (on the basis of actual days elapsed in a
360-day year) to the maximum amount available to be drawn under
such Commercial Letter of Credit from day to day during the
previous quarter. This fee shall be paid to the Agent, for the
account of the Revolving Loans Lenders in proportion to their
respective Pro Rata Revolving Loan Shares.
(iii) Any Letter of Credit Fees accrued under the
Existing Credit Agreement for the period prior to the Initial
Funding Date shall be payable as provided in the Existing Credit
Agreement.
(b) Issuing Bank Charges. The Borrower shall pay to
the Issuing Bank, solely for its own account, quarterly in
arrears on the fifteenth day of each January, April, July and
October beginning after the Initial Funding Date and also on the
Termination Date, (i) a processing fee equal to .20% per annum
applied (on the basis of actual days elapsed in a 360-day year)
to the maximum amount available to be drawn from day to day
during the immediately preceding fiscal quarter under each Letter
of Credit issued by it, and (ii) the standard charges assessed by
the Issuing Bank including charges assessed in connection with
the negotiation, amendment or cancellation of Letters of Credit.
3.09. Indemnification; Exoneration.
(a) In addition to amounts payable as elsewhere
provided in this Article III, the Borrower hereby agrees to
protect, indemnify, pay and save the Agent, the Issuing Bank and
each Lender harmless from and against any and all Liabilities and
Costs which the Agent or the Issuing Bank or Lender may incur or
be subject to as a consequence, direct or indirect, of (i) the
issuance of the Letter of Credit other than, in the case of the
Issuing Bank, as a result of its gross negligence or willful
misconduct, as determined by the final judgment of a court of
competent jurisdiction or (ii) the failure of the Issuing Bank to
honor a drawing under such Letter of Credit as a result of any
act or omission, whether rightful or wrongful, of any present or
future de jure or de facto Governmental Authority (all such acts
or omissions herein called "Governmental Acts").
(b) As between the Borrower, the Agent, the Lenders
and the Issuing Bank, the Borrower assumes all risks of the acts
and omissions of, or misuse of such Letter of Credit by, the
beneficiary of such Letter of Credit. In furtherance and not in
limitation of the foregoing, the Issuing Bank, the Agent and the
Lenders shall not be responsible (except for the Issuing Bank's
gross negligence or willful misconduct in connection therewith):
(i) for the form, validity, sufficiency, accuracy, genuineness
or legal effect of any document submitted by any party in
connection with the application for and issuance of the Letters
of Credit, even if it should in fact prove to be in any or all
respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) for the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign a
Letter of Credit or the rights or benefits thereunder or proceeds
thereof, in whole or in part, which may prove to be invalid or
ineffective for any reason; (iii) for errors, omissions,
interruptions or delays in transmission or delivery of any
messages, by mail, cable, telegraph, telex, or other similar form
of teletransmission or otherwise, whether or not they be in
cipher; (iv) for errors in interpretation of technical terms; (v)
for any loss or delay in the transmission or otherwise of any
document required in order to make a drawing under any Letter of
Credit or of the proceeds thereof; (vi) for the misapplication by
the beneficiary of a Letter of Credit of the proceeds of any
drawing under such Letter of Credit; and (vii) for any
consequences arising from causes beyond the control of the Agent,
the Issuing Bank and Lenders including any Governmental Acts.
None of the above shall affect, impair, or prevent the vesting of
any of the Issuing Bank's rights or powers under this Section
3.09.
(c) In furtherance and extension and not in
limitation of the specific provisions hereinabove set forth, any
action taken or omitted by the Issuing Bank under or in
connection with Letters of Credit issued on behalf of the
Borrower or any related certificates, if taken or omitted in good
faith, shall not, in the absence of gross negligence or willful
misconduct, put the Issuing Bank, the Agent or any Lender under
any resulting liability to the Borrower or relieve the Borrower
of any of its obligations hereunder to any such Person.
ARTICLE IV
Conditions To Loans and Letters of Credit
4.01. Conditions Precedent to the Initial Funding. The
obligation of each Lender to make any Loan requested to be made
by it on the Initial Funding Date (individually, an "Initial
Loan" and collectively, the "Initial Loans") and of the Issuing
Bank to issue any Letter of Credit pursuant hereto on the Initial
Funding Date, and the effectiveness of this Agreement on the
Initial Funding Date, shall be subject to satisfaction of all of
the following conditions precedent (unless waived by all the
Lenders):
(a) Certain Documents and Other Items. The Agent
shall have received on or before the Initial Funding Date all of
the following, all of which, except as provided below, shall be
in form and substance satisfactory to the Agent, the Co-Agents
and the Lenders and in sufficient copies for each Lender:
(i) This Agreement, executed by the Borrower,
each Term Loan Lender and each of the Lenders (as defined in the
Existing Credit Agreement), together with all Exhibits and
Schedules;
(ii) Evidence that any amounts due and payable
under the Existing Credit Agreement have been paid;
(iii) The Borrower Pledge Agreement and the
Trademark Assignment, in each case, executed by the Borrower,
together with stock certificates and appropriate stock powers
(endorsed in blank) in respect of any securities pledged pursuant
to the Borrower Pledge Agreement;
(iv) The ATSC Guaranty executed by ATSC;
(v) The ATSC Pledge Agreement executed by ATSC,
together with stock certificates and appropriate stock powers
(endorsed in blank) in respect of any securities pledged pursuant
to the ATSC Pledge Agreement;
(vi) The Borrower's Certificate of Incorporation,
as amended, modified or supplemented to the Initial Funding Date,
certified to be true, correct and complete by the Secretary of
State of Delaware as of a date not more than ten Business Days
prior to the Initial Funding Date, together with a good standing
certificate from the Secretary of State of Delaware dated a date
not more than ten Business Days prior to the Initial Funding
Date;
(vii) ATSC's Certificate of Incorporation, as
amended, modified or supplemented to the Initial Funding Date,
certified to be true, correct and complete by the Secretary of
State of Delaware as of a date not more than ten Business Days
prior to the Initial Funding Date, together with a good standing
certificate from the Secretary of State of Delaware dated as of a
date not more than ten Business Days prior to the Initial Funding
Date;
(viii) A certificate of the Secretary or
Assistant Secretary of the Borrower dated the Initial Funding
Date certifying (A) the names and true signatures of the
incumbent officers of the Borrower authorized to sign this
Agreement, the other Loan Documents and any notice or certificate
to be delivered hereunder, (B) the By-Laws of the Borrower as in
effect on the date of such certification, (C) the resolutions of
the Borrower's Board of Directors approving and authorizing the
execution, delivery and performance of this Agreement, and all
other Loan Documents executed by the Borrower, and (D) that there
have been no changes in the Certificate of Incorporation of the
Borrower since the date of the most recent certification thereof
by the Secretary of State of Delaware;
(ix) A certificate of the Secretary or Assistant
Secretary of ATSC dated the Initial Funding Date certifying (A)
the names and true signatures of the incumbent officers of ATSC
authorized to sign the ATSC Guaranty and the ATSC Pledge
Agreement, (B) the By-Laws of ATSC as in effect on the date of
such certification, (C) the resolutions of ATSC's Board of
Directors approving and authorizing the execution, delivery and
performance of the ATSC Guaranty and the ATSC Pledge Agreement
and all other Loan Documents executed by ATSC, and (D) that there
have been no changes in the Certificate of Incorporation of ATSC
since the date of the most recent certification thereof by the
Secretary of the State of Delaware;
(x) A favorable legal opinion, dated the Initial
Funding Date, addressed to the Agent, the Issuing Bank and the
Lenders from Skadden, Arps, Slate, Meagher & Flom, counsel to the
Borrower and ATSC, in substantially the form of Exhibit
4.01(a)(x);
(xi) UCC-1 financing statements signed by the
Borrower or ATSC, as the case may be, as debtor naming the Agent
as secured party to be filed in the jurisdictions listed in
Schedule 4.01; provided, that no fixture filings shall be
required to be made;
(xii) A certificate dated the Initial Funding Date
executed by the Senior Vice President-Finance of each of the
Borrower and ATSC to the effect that there has been no material
adverse change in the financial condition, business, operations,
properties or prospects of the Borrower or ATSC, from the date of
the last available financial statements;
(xiii) A certificate dated the Initial Funding
Date executed by the Senior Vice President-Finance of the
Borrower to the effect that the Commitments and all Obligations
hereunder constitute "Permitted Indebtedness" and "Senior
Indebtedness" under the Subordinated Note Indenture, and that
there is no outstanding Event of Default (as defined in the
Subordinated Note Indenture); and
(xiv) Such additional items as the Agent or the
Requisite Lenders may reasonably require.
(b) Fees and Expenses Paid. All costs, fees and
expenses (including legal fees and expenses, including the
allocated cost of in-house counsel) for which invoices have been
delivered at least three Business Days prior to the Initial
Funding Date) and other compensation payable to the Arranger, the
Co-Agents, the Agent and the Lenders shall have been paid.
The acceptance by the Borrower of the proceeds of the
Initial Loans made hereunder shall constitute a representation
and warranty by the Borrower as of the Initial Funding Date in
respect of such Loans that all the conditions contained in this
Section 4.01 have been satisfied or waived in writing pursuant to
Section 12.08.
4.02. Conditions Precedent to all Loans and Letters of
Credit. The obligation of the Lenders to make any Loan requested
to be made by it, and of the Issuing Bank to issue any Letter of
Credit, on any date, is subject to the following conditions
precedent as of such date:
(a)Notice of Borrowing. The Agent shall have received
in accordance with the provisions of Section 2.01(b) or 2.02(b),
on or before any Funding Date, a Notice of Borrowing.
(b)Additional Matters. As of the Funding Date for any
Loan or the date of issuance of any Letter of Credit:
(i) Representations and Warranties. All of the
representations and warranties of the Borrower contained in or
repeated pursuant to Section 5.02 and in any other Loan Document
(other than representations and warranties which expressly speak
only as of a different date) shall be true and complete in all
material respects on and as of such Funding Date or issuance
date, as though made on and as of such date;
(ii) No Default. No Event of Default or
Potential Event of Default shall have occurred and be continuing
or would result from the making of the requested Loan or the
issuance of the Letter of Credit;
(iii) No Material Adverse Chance. No event shall
have occurred after July 31, 1995 which, in the reasonable
judgment of the Requisite Lenders, has had or is likely to have a
Material Adverse Effect; and
(iv) Additional Term Loan Condition. If such
Loan is a Term Loan, since July 31, 1995 nothing shall have
occurred (and no Term Loan Lender shall have become aware of any
facts or conditions not previously known) which any Term Loan
Lender in its sole discretion shall determine (1) could have a
material adverse effect (a) on the rights or remedies of the Term
Loan Lenders or the Agent, (b) on the ability of the Borrower or
any of its Subsidiaries to perform their obligations to the Term
Loan Lenders and the Agent or (c) on the financial condition,
business operations, property, or prospects of the Borrower and
its Subsidiaries taken as a whole; or (2) has caused a material
deterioration in the Borrower's weekly or monthly operating
results.
(c)Supplemental Documentation. Such additional
documentation (including opinions of counsel) as the Agent or any
Lender through the Agent may reasonably require.
The acceptance by the Borrower of the proceeds of each
Loan made on any Funding Date other than the Initial Funding Date
or the issuance of any Letter of Credit in accordance with this
Agreement shall constitute a representation and warranty by the
Borrower as of such Funding Date or issuance date that all the
conditions contained in this Section 4.02 have been satisfied or
waived in writing pursuant to Section 12.08.
ARTICLE V
Representations and Warranties
5.01. Representations and Warranties on the Initial
Funding Date. In order to induce the Lenders to enter into this
Agreement and to make the Initial Loans, the Borrower hereby
represents and warrants to each Lender, the Co-Agents and the
Agent that the following statements are true and correct:
(a) Organization; Corporate Powers. Each of ATSC,
the Borrower and each Subsidiary of the Borrower (i) is a
corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization, (ii) is
duly qualified to do business as a foreign corporation and is in
good standing under the laws of each jurisdiction in which it
owns or leases real property or in which the nature of its
business requires it to be so qualified, except those
jurisdictions (other than Alabama, Arkansas, Mississippi and
Vermont) where the failure to be in good standing or to so
qualify has not had or will not have a Material Adverse Effect,
and (iii) has all requisite corporate power and authority to own,
operate and encumber its property and assets and to conduct its
business as presently conducted and as proposed to be conducted
in connection with and following the consummation of the
transactions contemplated by the Loan Documents.
(b) Authority. (i) Each of ATSC and the Borrower has
the requisite corporate power and authority to execute, deliver
and perform its obligations under each of the Loan Documents
executed by it, or to be executed by it.
(ii) The execution, delivery and performance (or
filing or recording, as the case may be) of each of the Loan
Documents to which it is party and the consummation of the
transactions contemplated thereby, have been duly authorized by
all necessary corporate action on the part of each of ATSC and
the Borrower and no other corporate proceedings on the part of
ATSC or the Borrower are necessary to consummate such
transactions.
(iii) Each of the Loan Documents (other than those
not in effect on the date of the making of this representation)
to which it is a party has been duly executed and delivered by
each of ATSC and the Borrower and constitutes its legal, valid
and binding obligation, enforceable against it in accordance with
its terms, is in full force and effect and no term or condition
thereof has been amended, modified or waived from the terms and
conditions contained therein delivered to the Agent pursuant to
Article IV without the prior written consent of the Agent and the
Requisite Lenders, and each of ATSC and the Borrower and, to the
best of the Borrower's knowledge, the other parties thereto have
performed and complied in all material respects with all the
material terms, provisions, agreements and conditions set forth
therein and required to be performed or complied with by such
parties on or before the effective date thereof, and no default
by any such party exists thereunder.
(c) No Conflict. The execution, delivery and perfor
mance of each Loan Document to which it is a party by each of
ATSC and the Borrower and each of the transactions contemplated
thereby do not and will not (i) constitute a tortious
interference with any Contractual Obligation of any Person, any
liability resulting from which would have or be reasonably
expected to have a Material Adverse Effect, or (ii) conflict with
or violate such Person's Certificate of Incorporation or By-Laws
or (iii) conflict with, result in a breach of or constitute (with
or without notice or lapse of time or both) a default under any
Requirement of Law or material Contractual Obligation of the
Borrower or any Subsidiary of the Borrower or (iv) result in or
require the creation or imposition of any Lien whatsoever upon
any of the properties or assets of ATSC, the Borrower or any
Subsidiary of the Borrower (other than Liens in favor of the
Agent or the Issuing Bank arising pursuant to the Loan Documents
or Liens permitted pursuant to Section 8.02(b)), or (v) require
any approval of stockholders, unless such approval has been
obtained.
(d) Governmental Consents. The execution, delivery
and performance of each Loan Document to which it is a party, by
each of ATSC and the Borrower and the transactions contemplated
thereby do not and will not require any registration with,
consent or approval of, or notice to, or other action, with or by
any Governmental Authority, except filings, consents or notices
which have been, or will in due course be, made, obtained or
given.
(e) Governmental Regulation. None of ATSC, the
Borrower or any of its Subsidiaries is subject to regulation
under the Public Utility Holdings Company Act of 1935, the
Federal Power Act, the Interstate Commerce Act, the Investment
Company Act of 1940 or any other statute or regulation of any
Governmental Authority such that its ability to incur
indebtedness is limited or its ability to consummate the
transactions contemplated hereby is materially impaired.
(f) Financial Position. All quarterly and annual
financial statements of ATSC, the Borrower or of the Borrower and
any of its Restricted Subsidiaries delivered to the Agent were
prepared in conformity with GAAP, except as otherwise noted
therein, and fairly present the financial position of ATSC, the
Borrower or the consolidated financial position of ATSC, the
Borrower and such Subsidiaries, as the case may be, as at the
respective dates thereof and the results of operations and
changes in cash flows for each of the periods covered thereby,
subject, in the case of any unaudited interim financial
statements, to changes resulting from audit and normal year-end
adjustments. Except as contemplated in the Loan Documents, none
of ATSC, the Borrower or any of its Restricted Subsidiaries has
any material obligations, contingent liabilities or liabilities
for taxes, long term leases or material or unusual forward or
long term commitments which are not reflected in such financial
statements and the notes thereto.
(g) Permitted Indebtedness. All Obligations
hereunder constitute "Permitted Indebtedness" and "Senior
Indebtedness" as such term is defined in the Subordinated Note
Indenture.
(h) Litigation; Adverse Effects. (i) There is no
action, suit, proceeding, investigation of any Governmental
Authority or arbitration, at law or in equity, or before or by
any Governmental Authority, pending, or, to the best knowledge of
the Borrower, threatened against ATSC, the Borrower or any
Subsidiary of the Borrower or any property of any of them, which
would be reasonably expected to (I) result in any Material
Adverse Effect, (II) materially and adversely affect the ability
of any party to any of the Loan Documents to perform its
obligations thereunder, or (III) materially and adversely affect
the ability of the Borrower to perform its Obligations or the
Lenders' ability to enforce such Obligations.
(ii) None of ATSC, the Borrower or any Subsidiary
of the Borrower is (A) in violation of any applicable law which
violation has or might reasonably be expected to have a Material
Adverse Effect, or (B) subject to or in default with respect to
any final judgment, writ, injunction, decree, order, rule or
regulation of any court or Governmental Authority which has or
might have a Material Adverse Effect. There is no action, suit,
proceeding or investigation pending or, to the knowledge of the
Borrower, threatened against or affecting ATSC, the Borrower or
any Subsidiary of the Borrower challenging the validity or the
enforceability of any of the Loan Documents.
(i) No Material Adverse Change. With respect to the
Borrower or any Restricted Subsidiary, there has occurred no
event since July 31, 1995 which has or would be reasonably
expected to have a Material Adverse Effect.
(j) Payment of Taxes. All tax returns and reports of
each of ATSC, the Borrower and its Subsidiaries required to be
filed (including extensions), have been timely filed, and all
taxes, assessments, fees and other charges of Governmental
Authorities thereupon and upon their respective properties,
assets, income and franchises which are shown on such returns as
being due and payable, have been paid when due and payable,
except such taxes, if any, that are reserved against in
accordance with GAAP, such taxes which are not yet delinquent,
such taxes which are payable in installments so long as paid
before any penalty accrues with respect thereto and such taxes as
are being contested in good faith by appropriate proceedings.
(k) Material Adverse Agreements. None of ATSC, the
Borrower or any of its Subsidiaries is a party to or subject to
any Contractual Obligation or other restriction contained in its
charter or By-laws which has or would be reasonably expected to
have a Material Adverse Effect after giving effect to the
consummation of the transactions contemplated in the Loan
Documents or otherwise.
(l) Securities Activities. None of ATSC, the
Borrower or any of its Subsidiaries is engaged in the business of
extending credit for the purpose of purchasing or carrying any
Margin Stock and the Borrower shall not use the proceeds of any
Loan in violation of Regulation G, T, U or X of the Board of
Governors of the Federal Reserve System.
(m) Disclosure. Subject to changes in facts or
conditions which are required or permitted under this Agreement,
the representations and warranties of ATSC and the Borrower
contained in the Loan Documents, and all certificates and other
documents delivered to the Agent in connection therewith, taken
as a whole do not contain any untrue statement of a material fact
or omit to state a material fact necessary in order to make the
statements contained herein or therein, in light of the
circumstances under which they were made, not misleading.
(n) Patents, Trademarks, Permits, Etc. The Borrower
and each of its Restricted Subsidiaries owns, is licensed or
otherwise has the lawful right to use, or has all permits and
other approvals of Governmental Authorities, patents, trademarks,
service marks, trade names, copyrights, technology, know-how and
processes used in or necessary for the conduct of its business as
currently conducted which are material to its financial
condition, business, operations, assets and prospects,
individually or taken as a whole. The use of such permits and
other approvals of Governmental Authorities, patents, trademarks,
service marks trade names, copyrights, technology, know-how and
processes by the Borrower or any such Subsidiary does not
infringe on the rights of any Person, subject to such claims and
infringements the existence of which do not have or are not
reasonably expected to have a Material Adverse Effect. The
transactions contemplated by the Loan Documents will not impair
the ownership of or rights under (or the license or other right
to use, as the case may be) any permits and governmental
approvals, patents, trademarks, service marks, trade names,
copyrights, technology, know-how or processes by the Borrower or
any such Subsidiary in any manner which has or might have a
Material Adverse Effect.
(o) Environmental Matters. To the best of the
Borrower's knowledge, the operations of the Borrower and its
Restricted Subsidiaries comply in all material respects with all
applicable environmental, health and safety Requirements of Law
except where any failure to comply is not reasonably likely to
have a Material Adverse Effect.
(p) ERISA. Each Plan which is intended to be
qualified under Section 401(a) of the IRC has been or will
promptly be submitted to the IRS for a determination that it is
so qualified and that the trust related to any such Plan is
exempt from Federal income tax under Section 501(a) of the IRC as
currently in effect. Neither the Borrower nor any ERISA
Affiliate has breached any of the responsibilities, obligations
or duties imposed on it by ERISA or regulations promulgated
thereunder with respect to any Plan which breach would have or
would be reasonably expected to have a Material Adverse Effect.
No Benefit Plan has incurred any accumulated funding deficiency
(as defined in Sections 302(a)(2) of ERISA and 412(a) of the IRC)
whether or not waived which would have or would be reasonably
expected to have a Material Adverse Effect. Neither the Borrower
nor any ERISA Affiliate nor any fiduciary of any Plan which is
not a Multiemployer Plan (i) has engaged in a nonexempt
prohibited transaction described in Section 406 of ERISA or 4975
of the IRC or (ii) has taken or failed to take any action which
would constitute or result in a Termination Event such that the
events under (i) or (ii) or both would have or would be
reasonably expected to have a Material Adverse Effect. Neither
the Borrower nor any ERISA Affiliate has incurred any liability
to the PBGC which remains outstanding other than the payment of
premiums, and there are no premium payments which have become due
which are unpaid. Neither the Borrower nor any ERISA Affiliate
has (i) failed to make a required contribution or payment to a
Multiemployer Plan which would have or would be reasonably
expected to have a Material Adverse Effect or (ii) made a
complete or partial withdrawal under Section 4203 or 4205 of
ERISA from a Multiemployer Plan which would have or would be
reasonably expected to have a Material Adverse Effect. Neither
the Borrower nor any ERISA Affiliate has failed to make a
required installment or any other required payment under Section
412 of the IRC on or before the due date for such installment or
other payment which would have or would be reasonably expected to
have a Material Adverse Effect. Neither the Borrower nor any
ERISA Affiliate is required to provide security to a Benefit Plan
under Section 401(a)(29) of the IRC due to a Plan amendment that
results in an increase in current liability for,the plan year.
(q) Net Worth. The Net Worth of the Borrower is at
least $269,000,000 on the Initial Funding Date prior to giving
effect to all transactions contemplated by Loan Documents,
including the payment and accrual of all Transaction Costs
payable by the Borrower with respect to any of the foregoing.
5.02. Subsequent Funding Representations and Warranties.
In order to induce the Lenders and the Issuing Bank to make any
Loans after the Initial Funding Date, and the Issuing Bank to
issue Letters of Credit, the Borrower hereby represents and
warrants to each Lender, the Issuing Bank and the Agent that the
statements set forth in Section 5.01 (except to the extent that
such statements expressly are made only as of the Initial Funding
Date), are true, correct and complete in all material respects as
though made on and as of the Funding Date in respect of each
Borrowing after the Initial Funding Date and the date of issuance
of each Letter of Credit, except that the representations and
warranties need not be true and correct to the extent that
changes in the facts and conditions on which such representations
and warranties are based are required or permitted under this
Agreement.
ARTICLE VI
Reporting Covenants
6.01. Financial Statements. So long as the Borrower shall
have any Obligation or any Lender shall have any Commitment
hereunder the Borrower shall maintain or cause to be maintained a
system of accounting established and administered in accordance
with sound business practices and consistent with past practice
to permit preparation of financial statements in conformity with
GAAP, and each of the financial statements described below shall
be prepared from such system and records. The Borrower shall
deliver or cause to be delivered to the Agent (with a sufficient
number of copies for all Lenders):
(a) As soon as practicable, and in any event within
45 days after the end of each of ATSC's first three fiscal
quarters on a consolidated basis for ATSC, the Borrower and its
Restricted Subsidiaries, a balance sheet, income statement and
cash flow statement for such fiscal quarter and a year-to-date
balance sheet, income statement and cash flow statement of ATSC,
all certified by a Responsible Officer;
(b) As soon as practicable, and in any event within
90 days after the end of each Fiscal Year, annual financial
statements on a consolidated basis for ATSC, the Borrower and its
Subsidiaries, consisting of a balance sheet, income statement and
cash flow statement, certified without qualification by the firm
of independent certified public accountants of recognized
national standing regularly retained by ATSC and acceptable to
the Agent, and accompanied by such firm's certification that, in
the course of its audit (conducted in accordance with generally
accepted auditing standards), it obtained no knowledge that an
Event of Default or Potential Event of Default has occurred as a
result of a violation of any of the covenants set forth in
Article IX;
(c) As soon as practicable, and in any event within
45 days after the end of each Fiscal Year, on a consolidated
basis for ATSC, the Borrower and its Subsidiaries, detailed
financial projections for the next succeeding Fiscal Year,
including a written explanation of the principal assumptions made
with respect thereto;
(d) (i) Together with each delivery of the financial
statements pursuant to paragraphs (a) and (b) above, a Compliance
Certificate of the Borrower substantially in the form of Exhibit
6.01, stating that the executive officers signatory thereto have
reviewed the terms of this Agreement, the ATSC Guaranty, the ATSC
Pledge Agreement and the Borrower Pledge Agreement, and have
made, or caused to be made under their supervision, a review in
reasonable detail of the transactions and condition of the
Borrower and its Subsidiaries, during the accounting period
covered by such financial statements, and that such review has
not disclosed the existence during or at the end of such
accounting period, and that the signers do not have knowledge of
the existence as at the date of such certificate, of any
condition or event which constitutes an Event of Default or
Potential Event of Default, or, if any such condition or event
existed or exists, specifying the nature and period of existence
thereof and what action the Borrower has taken, is taking and
proposes to take with respect thereto; provided, however, that
Attachment 2 to Exhibit 6.01 need not be included in the
Compliance Certificate provided together with the financial
statements delivered pursuant to paragraph (a) above and (ii) not
later than 45 days after the end of each fiscal quarter
(including the fourth fiscal quarter), a Pricing Ratio
Certificate, substantially in the form of Exhibit 6.01(d)(ii) (a
"Pricing Ratio Certificate"), calculating the Pricing Ratio on
the basis of the amount of Funded Debt outstanding on the last
day of such fiscal quarter and EBITDA for the four consecutive
fiscal quarters ending with such fiscal quarter.
(e) Promptly upon the Borrower obtaining knowledge
(A) of any condition or event which constitutes an Event of
Default or Potential Event of Default, (B) of any condition or
event which constitutes an event of default or which, with the
giving of notice or lapse of time or both, would constitute an
event of default under the Subordinated Note Indenture, (C) of
any condition or event which has or in the Borrower's judgment is
likely to have a Material Adverse Effect, a certificate of a
Responsible Officer specifying the nature and period of existence
of any such condition or event, or specifying the notice given or
action taken by any lender or holder of the Subordinated Notes
and the nature of such claimed default, Event of Default,
Potential Event of Default, event or condition, and what action
the Borrower has taken, is taking and proposes to take with
respect thereto;
(f) (A) Promptly after learning thereof, notice of
the institution of, or threat of, any action, suit, proceeding,
governmental investigation or arbitration against or affecting
the Borrower or any Restricted Subsidiary of the Borrower
involving claims in excess of $5,000,000, or any Property of
ATSC, the Borrower or any Restricted Subsidiary of the Borrower
valued in excess of $5,000,000 except, in each case, where the
same is fully covered by insurance (other than any applicable
deductible) or has been previously disclosed in writing by the
Borrower and of any material adverse change in any existing
action, suit, proceeding, governmental investigation or
arbitration; and (B) promptly upon learning thereof, notice of
any investigation or proceeding before or by any Governmental
Authority, the effect of which might limit, prohibit or restrict
materially the manner in which it currently conducts its business
or to declare any substance contained in the products
manufactured or distributed by it to be dangerous, if such
declaration is reasonably likely to have a Material Adverse
Effect;
(g) As soon as possible, and in any event within ten
Business Days after either the Borrower or any ERISA Affiliate
knows or, solely with respect to any Benefit Plan maintained by
the Borrower or an ERISA Affiliate on or after the Initial
Funding Date, has reason to know that a Termination Event has
occurred, a written statement of a Responsible Officer of the
Borrower describing such Termination Event and the action, if
any, which the Borrower or such ERISA Affiliate has taken, is
taking or proposes to take with respect thereto, and when known,
any action taken or threatened by the IRS, DOL or PBGC with
respect thereto;
(h) As soon as possible, and in any event within ten
Business Days, after either the Borrower or any ERISA Affiliate
knows that a prohibited transaction (defined in Section 406 of
ERISA and Section 4975 of the Internal Revenue Code) involving
the Borrower or any ERISA Affiliate has occurred, a statement of
a Responsible Officer of the Borrower describing such transaction
and the action which the Borrower or such ERISA Affiliate has
taken, is taking or proposes to take with respect thereto;
(i) Promptly upon, and in any event within ten
Business Days after, receipt by the Borrower or an ERISA
Affiliate of the PBGC's intention to terminate a Benefit Plan or
to have a trustee appointed to administer a Benefit Plan, copies
of each such notice;
(j) Promptly upon, and in any event within ten
Business Days after, receipt by the Borrower or any ERISA
Affiliate of any unfavorable determination letter from the IRS
regarding the qualification of a Plan under Section 401(a) of the
IRC, copies of such letter;
(k) Promptly upon, and in any event within ten
Business Days after, receipt by the Borrower or an ERISA
Affiliate of a notice from a Multiemployer Plan regarding the
imposition of withdrawal liability, copies of each such notice;
(l) Promptly upon, and in any event within ten
Business Days, after the Borrower or any ERISA Affiliate knows
(A) a Multiemployer Plan has been terminated, (B) the
administrator or plan sponsor of a Multiemployer Plan intends to
terminate a Multiemployer Plan, or (C) the PBGC has instituted or
will institute proceedings under Section 4042 of ERISA to
terminate a Multiemployer Plan a notification of such
information;
(m) Such other information respecting the financial
condition of ATSC, the Borrower or any Subsidiary of the
Borrower, business, operations, assets, performance or prospects
as the Agent or the Requisite Lenders may, from time to time,
reasonably request including financial projections and including
monthly balance sheets, income statements and cash flow
statements;
(n) On a timely basis consistent with the Borrower's
legal obligations to release such materials, copies of all
financial statements, reports and notices, if any, sent or made
available generally by the Borrower to the holders of its
publiclyheld Securities or sent or made available generally to a
holder of the Subordinated Notes or the trustee under the
Subordinated Note Indenture or filed with the Commission, and of
all press releases made available generally by the Borrower to
the public concerning material developments in the business of
the Borrower; and
(o) Upon the request of the Agent or any Lender,
copies of any management reports prepared by the Borrower's
independent certified public accountants in connection with the
annual audit.
ARTICLE VII
Affirmative Covenants
The Borrower covenants and agrees that, on and after the
date hereof and so long as any Lender shall have any Commitment
hereunder and until payment in full of all of the Obligations:
7.01. Corporate Existence, Etc. The Borrower shall, and
shall cause ATSC and each of its Subsidiaries to, at all times
maintain its corporate existence and preserve and keep in full
force and effect its rights and franchises except as permitted
under Section 8.08.
7.02. Corporate Powers, Etc. The Borrower shall, and
shall cause ATSC and each Subsidiary of the Borrower to, qualify
and remain qualified to do business in each jurisdiction in which
the nature of its business requires it to be so qualified, except
in those jurisdictions (other than Alabama, Arkansas,
Mississippi, and Vermont) where the failure to so qualify does
not have or would not reasonably be expected to have a Material
Adverse Effect.
7.03. Compliance with Laws. The Borrower shall, and shall
cause ATSC and each Subsidiary of the Borrower to, comply with
all Requirements of Law, and all restrictive covenants affecting
it or its business, properties, assets or operations, except
where the failure so to comply would be reasonably expected to
have Material Adverse Effect.
7.04. Payment of Taxes and Claims. The Borrower shall,
and shall cause ATSC and each Subsidiary of the Borrower, to pay
(a) all taxes, assessments and other governmental charges imposed
upon it or on any of its properties or assets or in respect of
any of its franchises, business, income or property before any
material penalty or interest in a material amount accrues
thereon, and (b) all claims (including claims for labor,
services, materials and supplies) for sums, material in the
aggregate, which have become due and payable and which by law
have or may become a Lien (other than a Customary Permitted Lien)
upon any of its properties or assets, prior to the time when any
material penalty or fine shall be incurred with respect thereto;
provided that no such taxes, assessments and governmental charges
referred to in clause (a) above or claims referred to in clause
(b) above need be paid if being contested in good faith by
appropriate proceedings promptly instituted and diligently
conducted and if such reserve or other appropriate provision, if
any, as shall be required in conformity with GAAP shall have been
made therefor.
7.05. Maintenance of Properties; Insurance. The Borrower
shall and shall cause ATSC and each Restricted Subsidiary of the
Borrower to, maintain or cause to be maintained in good repair,
working order and condition, excepting ordinary wear and tear and
damage due to casualty or condemnation, all Property material to
its operations and will make or cause to be made all appropriate
repairs, renewals and replacements thereof, consistent with past
practice. The Borrower shall, and shall cause each of its
Restricted Subsidiaries to, maintain such insurance as it may be
required to maintain under its leases and other contracts and, to
the extent not inconsistent with such requirements, shall also
maintain with financially sound insurance companies, insurance
policies and programs against loss or damage by fire, theft,
burglary, pilferage and loss in transit, together with such other
hazards as is reasonably consistent with prudent industry
practice, and maintain product and other liability insurance
consistent with prudent industry practice with financially sound
insurance companies.
7.06. Inspection of Property; Books and Records;
Discussions. The Borrower shall, and shall cause ATSC and each
Subsidiary of the Borrower to, permit any authorized
representative(s) designated by the Agent to visit and inspect
any of its properties, including financial and accounting
records, and to make copies and take extracts therefrom, and to
discuss its affairs, finances and accounts with its officers,
employees, representatives, agents or independent certified
public accountants, all upon reasonable notice and at such
reasonable time and as often as may be reasonably requested.
Each such visitation and inspection made by or on behalf of the
Agent shall be at the Borrower's expense. The Borrower will keep
proper books of record and account in which entries in conformity
with GAAP shall be made to prepare the financial statements
described in Section 6.01 and to satisfy all Requirements of Law.
7.07. Labor Matters. The Borrower shall notify the Agent
in writing, promptly, of any material labor dispute to which it
may become a party, any strikes or walkouts relating to any of
its facilities and the expiration of any labor contract to which
it is a party or by which it is bound.
7.08. Maintenance of Permits. The Borrower shall obtain
and maintain, and shall cause each of its Subsidiaries to obtain
and maintain, in full force and effect all Permits or other
rights necessary for the operation of its business, except where
the failure to obtain or maintain such Permits or rights would
not have or would not reasonably be expected to have a Material
Adverse Effect.
7.09. ERISA. The Borrower shall establish, maintain and
operate and cause each of its ERISA Affiliates to establish,
maintain and operate, all Plans in all material respects in
compliance with the applicable provisions of ERISA, the IRC, and
all other Requirements of Law.
7.10. Distribution Center Financing; Lease Financing. (a)
In the event that the Distribution Center Financing is not
consummated within 90 days after the Initial Funding Date, the
Borrower will provide to the Agent a mortgage on the Distribution
Center in form and substance reasonably satisfactory to the
Agent, and take such additional actions (including, without
limitation, delivery of real property surveys and FIRREA
appraisals (to the extent FIRREA appraisals are required by law)
and policies of title insurance and flood insurance (if
applicable)), as the Agent may reasonably request in order to
grant to the Agent, as collateral security for the Obligations, a
first priority mortgage on the Distribution Center.
(b) In the event that the Lease Financing is not
consummated within 90 days after the Initial Funding Date, the
Borrower will provide to the Agent a security agreement covering
the materials handling equipment related to the Distribution
Center, in form and substance reasonably satisfactory to the
Agent, and take such additional actions as the Agent may
reasonably request in order to grant to the Agent, as collateral
security for the Obligations, a first priority security interest
in such equipment.
7.11. UCC Searches. The Borrower shall provide to the
Agent, as soon as practicable after the Initial Funding Date, UCC
searches by a recognized service agency demonstrating that the
UCC financing statements referred to in Section 4.01(a)(xi) have
been filed in the appropriate filing offices and that there are
no other filings in such offices covering the Collateral.
ARTICLE VIII
Negative Covenants
The Borrower covenants and agrees that, on and after the
date hereof and so long as any Lender shall have any Commitment
hereunder and until payment in full of all of the Obligations:
8.01. Indebtedness. The Borrower shall not, and shall not
permit ATSC or any Restricted Subsidiary to, create, incur,
assume or otherwise become or remain directly or indirectly
liable with respect to any Indebtedness, except:
(a) the Obligations;
(b) Indebtedness in the form of bank overdrafts in
the ordinary course of business;
(c) the Subordinated Notes and obligations for fees,
expenses and indemnifications related thereto;
(d) Indebtedness in connection with any Receivables
Transaction;
(e) (i) Indebtedness incurred by the Borrower or any
Restricted Subsidiary to finance Capital Expenditures and (ii)
Capital Lease obligations of the Borrower or any Restricted
Subsidiary; provided, however, that Capital Expenditures made in
connection with the Distribution Center shall not exceed
$25,000,000 during the term of this Agreement;
(f) Indebtedness in respect of Accommodation
Obligations permitted under Section 8.04;
(g) Indebtedness of ATSC to the Borrower and any
Restricted Subsidiary in connection with any advances made
pursuant to Section 8.03(b);
(h) Indebtedness in respect of Interest Rate
Contracts;
(i) intercompany Indebtedness among the Borrower and
its Restricted Subsidiaries;
(j) if the CAT Joint Venture becomes a Restricted
Subsidiary, Indebtedness of the CAT Joint Venture existing on the
date the CAT Joint Venture becomes a Restricted Subsidiary;
(k) Indebtedness in connection with Liens permitted
under clause (x) of Section 8.02(b);
(l) Indebtedness under the Distribution Center
Financing and the Lease Financing; and
(m) other Indebtedness of the Borrower and its
Restricted Subsidiaries not exceeding in the aggregate principal
amount of $5,000,000 at any one time outstanding.
8.02. Sales of Assets; Liens.
(a) Sales. The Borrower shall not, and shall not
permit ATSC or any Restricted Subsidiary to, sell, assign, trans
fer, lease, convey or otherwise dispose of, any properties or
assets, whether now owned or hereafter acquired, or any income or
profits therefrom, except among ATSC, the Borrower and any
Restricted Subsidiary and except:
(i) sales of inventory and subleases of real
property in the ordinary course of business (and with respect to
such subleases consistent with its past practices);
(ii) subleases of real property not in the
ordinary course of business, but only to the extent the aggregate
annual rental payments accrued under all such subleases do not
exceed $1,000,000;
(iii) Receivables Transactions;
(iv) other sales of assets, including the sale of
Securities of Subsidiaries, whether or not in the ordinary course
of business, having an aggregate fair market value of not more
than $1,000,000 pursuant to one single disposition or $2,000,000
in the aggregate pursuant to several dispositions in any one
Fiscal Year;
(v) licenses of trademarks to the extent
necessary to maintain or protect such trademarks in jurisdictions
outside the United States of America;
(vi) sales or dispositions of Cash Equivalents;
(vii) sales of the Borrower's interest in the CAT
Joint Venture pursuant to the CAT Joint Venture Agreement; and
(viii) transfer of cash or property in an
amount not to exceed 1% of EBITDA for each Fiscal Year to a
charitable foundation established by the Borrower or ATSC;
provided, that (A) no disposition (other than sales of
Receivables permitted by clause (iii) or transfers permitted by
clause (viii)) in excess of $1,000,000 shall be permitted unless
the price to be received therefor represents the then fair market
value of the asset or property sold at the time of such
disposition and at least 80% of the price is to be paid in cash
at the closing of the disposition and (B) this Section 8.02(a)
shall not prohibit the Lease Financing or the Distribution Center
Financing.
(b)Liens. The Borrower shall not, and shall not permit
ATSC or any Restricted Subsidiary to, create, incur, assume or
permit to exist, directly or indirectly, any Lien on or with
respect to any of its Property except:
(i) Liens securing the Obligations;
(ii) Liens upon the interest or title of a lessor
or secured by a lessor's interest under any lease under which the
Borrower or any Restricted Subsidiary is the lessee and the
interest of the lessee under any lease under which the Borrower
or any Restricted Subsidiary is the lessor;
(iii) Customary Permitted Liens;
(iv) Liens granted by the Borrower or any
Restricted Subsidiary (including the interest of a lessor under a
Capital Lease) and Liens on Property existing at the time of
acquisition thereof by the Borrower or any Restricted Subsidiary
securing Indebtedness permitted by Section 8.01(e);
(v) Liens on Property of any Person existing at
the time such Person becomes a Restricted Subsidiary incurring
Indebtedness permitted by Section 8.01;
(vi) Liens with respect to judgments or
attachments which do not result in an Event of Default or
Potential Event of Default hereunder;
(vii) Permitted Existing Liens;
(viii) Liens in respect of Receivables sold
pursuant to a Receivables Transaction;
(ix) Liens in respect of Indebtedness permitted
pursuant to Section 8.01(l) and (m); and
(x) to the extent Indebtedness secured thereby
is permitted to be extended, renewed, replaced or refinanced, a
future Lien upon any Property which is subject to a Lien
described in clause (vii) above, if such future Lien attaches
only to the same Property, secures only such permitted
extensions, renewals, replacements or refinancings and is of like
quality, character and extent.
8.03. Investments. The Borrower shall not, and shall not
permit ATSC or any Restricted Subsidiary to, make or own,
directly or indirectly, any Investment in any Person except:
(a)Investments by the Borrower in Cash Equivalents;
(b)Investments by the Borrower resulting from advances
to ATSC to fund any of the items set forth in Section 8.05(a) or
(b);
(c)Investments by ATSC in the capital stock of the
Borrower;
(d)Investments in Subsidiaries if such Subsidiaries
have been organized in connection with a Receivables Transaction;
(e)Investments in Restricted Subsidiaries and
investments resulting from transactions permitted pursuant to
Section 8.01(i);
(f)Investments in joint ventures (in the form of
corporations, partnerships or otherwise) in a maximum amount not
exceeding $10,000,000 at any one time outstanding;
(g)Investments in Unrestricted Subsidiaries in an
amount not to exceed $1,000,000 in the aggregate in any Fiscal
Year;
(h)Investments not exceeding $5,000,000 at any one time
outstanding in respect of loans to senior executives and key
employees of the Borrower or any Restricted Subsidiary;
(i)Investments by the Borrower in the CAT Joint Venture
pursuant to the CAT Joint Venture Agreement in the form of (i)
capital stock, (ii) advances made to the CAT Joint Venture not to
exceed $5,000,000 in the aggregate outstanding at any time and
(iii) one or more Letters of Credit issued in respect of
obligations of the CAT Joint Venture;
(j)Investments in the form of advance payments to
suppliers not in excess of an aggregate amount of $10,000,000
outstanding at any one time; and
(k)other Investments by the Borrower not in excess of
an aggregate amount of $500,000 outstanding at any one time.
8.04. Accommodation Obligations. The Borrower shall not,
and shall not permit ATSC or any Restricted Subsidiary to, create
or become or be liable, directly or indirectly, with respect to
any Accommodation Obligation except:
(a)guaranties resulting from endorsement of negotiable
instruments for collection in the ordinary course of business;
(b)obligations, warranties and indemnities, not
relating to Indebtedness of any Person, which have been or are
undertaken or made in the ordinary course of business and not for
the benefit or in favor of an Affiliate of the Borrower or such
Subsidiary;
(c)obligations in respect of any Receivables
Transaction;
(d)guaranties of obligations of the Borrower or
Subsidiaries of the Borrower in connection with the Distribution
Center Financing or the leasing or financing of materials
handling equipment, computer equipment, furniture and fixtures in
the ordinary course of business;
(e)Accommodation Obligations arising in connection with
the Borrower's agreement to provide the CAT Joint Venture with
one or more Letters of Credit issued for the benefit of the CAT
Joint Venture pursuant to the CAT Joint Venture Agreement to the
extent permitted by Section 8.03(i) and similar arrangements for
the benefit of other joint ventures; and
(f)with respect to ATSC, Accommodation Obligations
arising in connection with the ATSC Guaranty or Accommodation
Obligations for Indebtedness of the Borrower or its wholly-owned
Restricted Subsidiaries permitted to be incurred under Section
8.01.
8.05. Restricted Payments. The Borrower shall not, and
shall not permit any of its Subsidiaries or ATSC, to declare or
make any Restricted Payment except:
(a)scheduled payments (but not prepayments) of interest
due on the Subordinated Notes, if such scheduled payments are
permitted to be made pursuant to the terms of such Subordinated
Notes;
(b)dividends paid and declared in any Fiscal Year by
the Borrower to ATSC to fund (i) income and franchise taxes
payable in such Fiscal Year owed by ATSC pursuant to the Tax
Sharing Agreement dated as of July 12, 1989 between ATSC and the
Borrower; (ii) other ordinary operating expenses of ATSC not in
excess of $500,000 in any Fiscal Year; (iii) ATSC's share of
expenses incurred in connection with, any public offering of
Common Stock; and (iv) payments permitted under Section 8.05(e);
(c)dividends paid or any other distribution made by any
Subsidiary on its capital stock;
(d)payments by ATSC to the Investor Group of its share
of expenses incurred in connection with any public offering of
the Common Stock held by the Investor Group; and
(e)payments by ATSC or the Borrower to acquire shares
of Common Stock from employees of ATSC, the Borrower or any
Restricted Subsidiary in an aggregate amount not exceeding
$100,000 in any Fiscal Year.
8.06. Conduct of Business. The Borrower shall not, and
shall not permit any of its Restricted Subsidiaries to, engage in
any business other than (a) the business engaged in by the
Borrower or such Subsidiary on the date hereof; (b) any business
activities substantially similar or related thereto; and (c) any
Receivables Transaction.
8.07. Transactions with Affiliates. The Borrower shall
not, and shall not permit ATSC or any Restricted Subsidiary to,
at any time after the Initial Funding Date directly or indirectly
enter into or permit to exist any transaction (including the
purchase, sale, lease or exchange of any property or the
rendering of any service) with any of its Affiliates on terms
that are less favorable to it than those fair and reasonable
terms that might be obtained in a comparable armslength
transaction at the time; provided that the foregoing restriction
shall not apply to transactions among ATSC, the Borrower and its
wholly-owned Restricted Subsidiaries, customary fees paid to
members of the Board of Directors of the Borrower or ATSC or
payments permitted under Section 8.03(h) or the business
contemplated by the CAT Joint Venture Agreement or other joint
ventures.
8.08. Restriction on Fundamental Changes.
(a)The Borrower shall not, and shall not permit any
Restricted Subsidiary to, enter into any merger or consolidation,
or liquidate, wind-up or dissolve (or suffer any liquidation or
dissolution), discontinue its business or convey, lease, sell,
transfer or otherwise dispose of, in one transaction or series of
transactions, all or any substantial part of its business or
Property, whether now or hereafter acquired, except (i) as
otherwise permitted under Section 8.02(a), (ii) that any
Restricted Subsidiary may merge into or convey, sell, lease or
transfer all or substantially all of its assets to, the Borrower
or any other Restricted Subsidiary and (iii) that nothing
contained herein shall prohibit the Borrower from dissolving or
liquidating any Subsidiary if in the reasonable opinion of the
Borrower's senior management such dissolution or liquidation has
no reasonable likelihood of having a Material Adverse Effect.
(b)The Borrower shall not and shall not permit ATSC or
any Restricted Subsidiary to, amend its Certificate of
Incorporation or By-Laws in a manner that is in any way adverse
to the rights of the Agent and the Lenders hereunder.
8.09. ERISA. The Borrower shall not, and shall not permit
any of its ERISA Affiliates to, do any of the following to the
extent that such act or failure to act would in the aggregate,
after taking into account any other such acts or failures to act,
have a Material Adverse Effect.
(a)Engage, or permit any ERISA Affiliate to engage, in
any prohibited transaction described in Sections 406 of ERISA or
4975 of the IRC for which a statutory or class exemption is not
available or a private exemption has not been previously obtained
from the DOL;
(b)permit to exist any accumulated funding deficiency
(as defined in Sections 302 of ERISA and 412 of the IRC), whether
or not waived;
(c)terminate, or permit any ERISA Affiliate to
terminate, any Benefit Plan which would result in any liability
of the Borrower or any ERISA Affiliate under Title IV of ERISA;
(d)fail, or permit any ERISA Affiliate to fail, to make
any contribution or payment to any Multiemployer Plan which the
Borrower or any ERISA Affiliate may be required to make under any
agreement relating to such Multiemployer Plan, or any law
pertaining thereto;
(e)fail, or permit any ERISA Affiliate to fail, to pay
any required installment or any other payment required under
Section 412 of the IRC on or before the due date for such
installment or other payment; or
(f)amend, or permit any ERISA Affiliate to amend, a
Plan resulting in an increase in current liability for the plan
year such that the Borrower or any ERISA Affiliate is required to
provide security to such Plan under Section 401(a)(29) of the
IRC.
8.10. Sales and Leasebacks. The Borrower shall not, and
shall not permit any Restricted Subsidiary to, become liable,
directly or by way of any Accommodation Obligation, with respect
to any lease, whether an Operating Lease or a Capital Lease, of
any Property whether now owned or hereafter acquired, (a) which
the Borrower or any Restricted Subsidiary has sold or transferred
or is to sell or transfer to any other Person, or (b) which the
Borrower or any such Restricted Subsidiary intends to use for
substantially the same purposes as any other Property which has
been or is to be sold or transferred by that entity to any other
Person in connection with such lease; provided, that this Section
8.10 shall not prohibit the Lease Financing or the Distribution
Center Financing.
8.11. Subordinated Indebtedness.
(a)No Change. The Borrower shall not, and shall not
permit ATSC to, amend, supplement or modify the terms of the
Subordinated Notes (i) which relate to subordination, interest
(including options to pay in kind), principal, tenor, extension
of maturity, payments in respect of redemptions, repurchases,
sinking fund, principal, interest or other payments, or the
acceleration thereof or any rescission of acceleration or (ii)
except if necessary to comply with the provisions of the Trust
Indenture Act of 1939 or (iii) by making more restrictive, or
adding, covenants, breaches, defaults, or events of default, or
(iv) by shortening cure periods, or (v) if the benefits to the
Borrower or the Agent or the Lenders would thereby be in any
material respect limited, restricted or diminished.
(b)Notices. The Borrower shall deliver to the Agent
(i) a copy of each notice or other written communication
delivered by or on behalf of the Borrower to any trustee under
the Subordinated Indenture, such delivery to be made at the same
time and by the same means as such notice or other written
communication is delivered to such Person, and (ii) a copy of
each notice or other written communication received by the
Borrower from the trustee under the Subordinated Indenture, such
delivery to be made promptly after such notice or other written
communication is received by the Borrower.
8.12. Margin Regulations. No portion of the proceeds of
any credit extended under this Agreement shall be used in any
manner which might cause the extension of credit or the
application of such proceeds to violate Regulation G, Regulation
T, Regulation U or Regulation X or any other regulation of the
Federal Reserve Board or to violate the Securities Exchange Act
or the Securities Act, in each case as in effect on the date or
dates of such Borrowing and such use of proceeds.
8.13. Change of Fiscal Year. The Borrower shall not
change its Fiscal Year.
8.14. Subsidiaries. (a) The Borrower shall not permit any
Unrestricted Subsidiary to enter into any Accommodation
Obligation with respect to any Indebtedness of ATSC, the Borrower
or any Restricted Subsidiary or to grant or permit to exist any
Lien on its Property to secure any such Indebtedness.
(b)The Borrower shall not, and shall not permit any
Restricted Subsidiary to, create or otherwise become effective
any consensual encumbrance or restriction of any kind on the
ability of any Restricted Subsidiary to pay dividends or make any
other distribution, in respect of its stock or make any other
Restricted Payment, pay any Indebtedness or other Obligation owed
to the Borrower or any other Restricted Subsidiary, make loans or
advances or other Investments in the Borrower or any other
Restricted Subsidiary or sell, transfer or otherwise convey any
of its Property to the Borrower or any other Restricted
Subsidiary.
8.15. Capital Expenditures. The Borrower shall not make
Capital Expenditures in any Fiscal Year, commencing with Fiscal
Year 1996, exceeding (a) during Fiscal Year 1996, the sum of (i)
$6,250,000 during each fiscal quarter in such Fiscal Year, with
amounts thereof not used in such fiscal quarter being carried
forward and available in the subsequent fiscal quarters in Fiscal
Year 1996, plus (ii) if the Borrower issues and sells its equity
securities during Fiscal Year 1996, an amount equal to the lesser
of (x) one-third of the net cash proceeds received by the
Borrower from such equity sales and (y) the difference between
$32,500,000 and the amount of capital expenditures permitted for
Fiscal Year 1996 by the foregoing clause (i) (provided, that the
Borrower may not make or commit any amount of Capital
Expenditures permitted by this clause (ii) unless the Borrower
shall have delivered to the Banks the financial statements
required by Section 6.01(a) for the fiscal quarter ending July
31, 1996 and such financial statements show that the Borrower was
in compliance with Section 9.03 as of the end of such fiscal
quarter); and (b) during any Fiscal Year after Fiscal Year 1996,
$32,500,000 in the aggregate; provided, that if in any Fiscal
Year after Fiscal Year 1996 (each, a "Calculation Year"), the
Fixed Charge Coverage Ratio for such Calculation Year is greater
than 1.25, then Capital Expenditures during the Fiscal Year
immediately following such Calculation Year may be increased by
the lesser of (x) $17,500,000 and (y) the Contingent Amount,
determined in accordance with the following formula:
C = (EBITDA) - B
A
where
C = Contingent Amount;
EBITDA = EBITDA for such Calculation Year;
A = 1.25 plus 50% of the difference between 1.25 and the actual
Fixed Charge Coverage Ratio for such Calculation Year; and
B = the sum of the amounts described in clause (b) of the
definition of Fixed Charge Coverage Ratio in Section 1.01 for
such Calculation Year.
The Borrower will not, at any time when it is not in compliance
with Section 9.03, commit to make any Capital Expenditures, and
during such time as the Borrower is not in compliance with
Section 9.03, the Borrower will make only such Capital
Expenditures as were legally committed at a time when the
Borrower was in compliance with Section 9.03. For purposes
hereof, it is agreed that the Borrower shall be in compliance
with Section 9.03 at any time that a breach thereunder has been
effectively waived or cured.
ARTICLE IX
Financial Covenants
The Borrower covenants and agrees that, on and after the
date hereof and so long as any Lender has any Commitment
hereunder and until payment in full of all the Obligations:
9.01. Minimum Net Worth. The Borrower shall not permit
Net Worth as determined at the end of any fiscal quarter
(beginning with the fiscal quarter ending on or about October 31,
1994) to be less than the Net Worth on or about July 29, 1994
plus (a) 50% of Net Income after July 31, 1994 (without deducting
from such cumulative amount the amount of any net loss incurred
in any Fiscal Year except extraordinary losses associated with
the redemption or repurchase of Indebtedness) plus (b) 100% of
the net proceeds of any equity issue or conversion of debt to
equity subsequent to the Initial Funding Date minus (c) any
expenses related to the payments described in Section
8.05(b)(iii) or Section 8.05(e).
9.02. Funded Debt to Total Capitalization Ratio. The
Borrower shall not permit the ratio of (a) (i) Funded Debt plus
(ii) obligations in respect of Capital Leases to (b) Total
Capitalization as determined at the end of each fiscal quarter,
(x) for any fiscal quarter prior to the fourth quarter of Fiscal
Year 1996, to exceed .475 to 1 or (y) for any fiscal quarter from
and after the fourth quarter of Fiscal Year 1996, .45 to 1
9.03. Minimum Fixed Charge Coverage Ratio. The Borrower
shall not permit the Fixed Charge Coverage Ratio, as determined
at the end of any fiscal quarter for the preceding four fiscal
quarters (or, if less, the number of full fiscal quarters elapsed
since the Initial Funding Date) to be less than the ratio set
forth opposite the month in which such fiscal quarter ends:
Quarter Ended Minimum Ratio
January 1996 0.75 to 1.00
April 1996 1.00 to 1.00
July 1996 1.10 to 1.00
October 1996 1.15 to 1.00
January 1997
and thereafter 1.25 to 1.00
ARTICLE X
Events of Default; Right and Remedies
10.01. Events of Default. Each of the following
occurrences shall constitute an Event of Default under this
Agreement:
(a) Failure to Make Payments When Due. (i) The
Borrower shall fail to pay when due any principal of any Loan or
Reimbursement Obligation, or
(ii) The Borrower shall fail to pay any interest
on any Loan or Reimbursement Obligation, or any fee or other
amount payable under this Agreement, within the earlier of (A)
five Business Days after the same shall become due in accordance
with terms hereof or (B) in the event that a principal or
interest payment shall be due under the terms of the Subordinated
Notes within such five Business Day period, one Business Day
prior to such payment date in respect of the Subordinated Notes
or if the payments are due on the same date, on such due date.
(b) Breach of Certain Covenants. The Borrower shall
fail duly and punctually to perform or observe (or cause ATSC to
perform or observe) any agreement, covenant or obligation binding
on the Borrower under Article VIII or Article IX or binding on
the Borrower or ATSC under any section of the Collateral
Documents (which failure continues after the expiration of any
grace period specified under such section of the Collateral
Documents).
(c) Breach of Representation or Warranty. Any
representation or warranty made or deemed made by the Borrower or
ATSC to the Agent, the Issuing Bank or any Lender herein or in
any of the other Loan Documents or in any written statement or
certificate at any time given by the Borrower or ATSC pursuant to
any of the Loan Documents shall be false or misleading in any
material respect on the date as of which made or deemed made.
(d) Other Defaults. Either the Borrower or ATSC
shall fail duly and punctually to perform or observe any
agreement, covenant or obligation arising under this Agreement
(except those described in Sections 10.01(a), (b) and (c)) or
under any of the other Loan Documents, and such failure shall
continue for 20 days (or, in the case of Loan Documents other
than this Agreement, any longer period of grace expressly set
forth therein).
(e) Default as to Other Indebtedness. ATSC, the
Borrower or any Restricted Subsidiary shall fail to make any
payment when due (whether by scheduled maturity, required prepay
ment, acceleration, demand or otherwise) on any Indebtedness of
ATSC, the Borrower or any such Subsidiary, other than an Obliga
tion, if the aggregate amount of all such Indebtedness is
$5,000,000 or more; or any breach, default or event of default
shall occur, or any other event shall occur or condition shall
exist, under any instrument, agreement or indenture pertaining
thereto, if the effect thereof is to accelerate, or permit the
holder(s) of such Indebtedness to accelerate, the maturity of any
such Indebtedness; or any such Indebtedness shall be declared to
be due and payable or required to be prepaid (other than by a
regularly scheduled required prepayment prior to the stated
maturity thereof), or the holder of any Lien (other than Liens
upon property leased to ATSC, the Borrower or such Restricted
Subsidiary which were created by the landlord prior to the
commencement of the lease), in any amount, shall commence
foreclosure of such Lien upon property of ATSC, the Borrower or
any Restricted Subsidiary having a value in excess of $5,000,000
in the aggregate.
(f) Involuntary Bankruptcy; Appointment of Receiver,
Etc. (i) An involuntary case shall be commenced against the
Borrower or ATSC or any Restricted Subsidiary, and the petition
shall not be dismissed within 60 days after commencement of the
case, or a court having jurisdiction in the premises shall enter
a decree or order for relief in respect of the Borrower or ATSC
or any Restricted Subsidiary in an involuntary case, under any
applicable bankruptcy, insolvency or other similar law now or
hereinafter in effect; or any other similar relief shall be
granted under any applicable federal, state or foreign law.
(ii) A decree or order of a court having jurisdic
tion in the premises for the appointment of a receiver,
liquidator, sequestrator, trustee, custodian or other officer
having similar powers over the Borrower or ATSC or any Restricted
Subsidiary, or over all or a substantial part of the property of
the Borrower or ATSC or any Restricted Subsidiary, shall be
entered; or an interim receiver, trustee or other custodian of
the Borrower or ATSC or any Restricted Subsidiary, or of all or a
substantial part of the property of the Borrower or ATSC or any
Restricted Subsidiary, shall be appointed or a warrant of
attachment, execution or similar process against any substantial
part of the property of the Borrower or ATSC or any Restricted
Subsidiary, shall be issued and any such event shall not be
stayed, vacated, dismissed, bonded or discharged within 60 days
of entry, appointment or issuance.
(g) Voluntary Bankruptcy; Appointment of Receiver,
Etc. The Borrower or ATSC or any Restricted Subsidiary shall
have an order for relief entered with respect to it or commence a
voluntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, or shall consent to
the entry of an order for relief in an involuntary case, or to
the conversion of an involuntary case to a voluntary case, under
any such law, or shall consent to the appointment of or taking of
possession by a receiver, trustee or other custodian for all or a
substantial part of its property; the Borrower or ATSC or any
Restricted Subsidiary shall make any assignment for the benefit
of creditors or shall be unable or generally fail, or admit in
writing its inability, to pay its debts as such debts become due;
or the Board of Directors (or any committee thereof) of the
Borrower or ATSC or any Restricted Subsidiary adopts any
resolution to approve any of the foregoing.
(h) Judgments and Attachments. Any money judgment
(other than a money judgment covered by insurance, but only if
the insurer has admitted liability with respect to such money
judgment), writ or warrant of attachment, or similar process
involving in any case an amount in excess of $5,000,000 shall be
entered or filed against the Borrower or ATSC or any Restricted
Subsidiary or any of their Property, and shall remain
undischarged, unvacated, unbonded or unstayed for a period of 60
days.
(i) Dissolution. Any order, judgment or decree shall
be entered against the Borrower or ATSC or any Restricted
Subsidiary decreeing its involuntary dissolution or split-up and
such order shall remain undischarged and unstayed for a period in
excess of 60 days; or the Borrower or ATSC or any Restricted
Subsidiary shall otherwise dissolve or cease to exist except as
permitted by Section 8.08.
(j) Collateral Documents; Failure of Security or
Subordination. For any reason other than a release of Liens or
the failure of the Agent and the Lenders to take any action
unilaterally available to them to maintain the perfection of the
Liens created in favor of the Agent pursuant to this Agreement
and the Collateral Documents, any Collateral Document ceases to
be in full force and effect or any Lien intended to be created
thereby ceases to be or is not valid and perfected; or any Lien
in favor of the Agent contemplated by this Agreement or any
Collateral Document, or the subordination provisions of the
Subordinated Notes shall, at any time, be invalidated or
otherwise cease to be in full force and effect; or any such Lien
or any Obligation shall be subordinated or shall not have the
priority contemplated by this Agreement, the Collateral Documents
or such subordination provisions, for any reason.
(k) Change in Control. Any Change in Control shall
occur.
(l) ERISA Liabilities. Any Termination Event occurs
which will or is reasonably likely to subject either the Borrower
or an ERISA Affiliate to a liability which will or is reasonably
expected to have a Material Adverse Effect.
An Event of Default shall be deemed "continuing" until
cured or waived in writing in accordance with Section 12.08.
10.02. Rights and Remedies.
(a) Acceleration. Upon the occurrence of any Event
of Default described in Section 10.01(f) or 10.01(q) with respect
to the Borrower, the Commitments shall automatically and
immediately terminate and the unpaid principal amount of and any
and all accrued interest on the Loans and all Reimbursement
Obligations shall automatically become immediately due and
payable, with all additional interest from time to time accrued
thereon and without presentment, demand, or protest or other
requirements of any kind (including valuation and appraisement,
diligence, presentment, notice of intent to demand or accelerate
and of acceleration), all of which are hereby expressly waived by
the Borrower, and the obligation of each Lender to make any Loan
hereunder and of the Issuing Bank to issue any Letter of Credit
shall thereupon terminate; and upon the occurrence and during the
continuance of any other Event of Default, the Agent shall at the
request, or may with the consent, of the Requisite Lenders, by
written notice to the Borrower, (i) declare that the Commitments
are terminated, whereupon the Commitments and the obligation of
each Lender to make any Loan hereunder and of the Issuing Bank to
issue any Letter of Credit shall immediately terminate, and (ii)
declare the unpaid principal amount of and any and all accrued
and unpaid interest on the Loans and all Letter of Credit
Obligations to be, and the same shall thereupon be, immediately
due and payable with all additional interest from time to time
accrued thereon and without presentment, demand, or protest or
other requirements of any kind (including valuation and
appraisement, diligence, presentment, notice of intent to demand
or accelerate and of acceleration), all of which are hereby
expressly waived by the Borrower.
(b) Deposit for Letters of Credit. In addition, upon
demand by the Agent or the Issuing Bank after the occurrence and
during the continuance of any Event of Default, the Borrower
shall deposit with the Agent for the benefit of the Issuing Bank
with respect to each Letter of Credit then outstanding, promptly
upon the demand of the Agent, cash or Cash Equivalents in an
amount equal to the greatest amount for which such Letter of
Credit may be drawn. Such deposit shall be held by the Agent for
the benefit of the Issuing Bank as security for, and to provide
for the payment of, the Reimbursement Obligations. Pending the
application of such deposit to payment of the Reimbursement
Obligations, the Agent may invest such deposit in an open account
or similar immediately available savings deposit and all interest
accrued thereon shall be held with such deposit as additional
security for the Reimbursement Obligations.
(c) Rescission. If at any time after acceleration of
the maturity of the Loans, the Borrower shall pay all arrears of
interest and all payments on account of principal of the Loans
and Reimbursement Obligations which shall have become due
otherwise than by acceleration (with interest on principal and
on overdue interest, at the rates specified in this Agreement)
and all Events of Default and Potential Events of Default (other
than nonpayment of principal of and accrued interest on the Loans
due and payable solely by virtue of acceleration) shall be
remedied or waived pursuant to Section 12.08, then by written
notice to the Borrower, the Requisite Lenders may elect, in the
sole discretion of such Requisite Lenders, to rescind and annul
the acceleration and its consequences and thereupon shall release
any deposit made pursuant to Section 10.02(b); provided, however,
that no rescission shall occur after the earlier of 30 days after
the date of acceleration or any Event of Default specified in
paragraph (f) or (g) of Section 10.01, whichever is earlier. No
action pursuant to this paragraph (c) shall affect any subsequent
Event of Default or Potential Event of Default or impair any
right or remedy consequent thereon. The provisions of the
preceding sentence are intended merely to bind the Lenders to a
decision which may be made at the election of the Requisite
Lenders; they are not intended to benefit the Borrower and do not
give the Borrower the right to require the Lenders to rescind or
annul any acceleration hereunder, even if the conditions set
forth herein are met.
ARTICLE XI
The Agent
11.01. Appointment and Authorization. Each Lender and the
Issuing Bank hereby irrevocably appoints, designates and
authorizes the Agent to take such action on its behalf under the
provisions of this Agreement and each other Loan Document and to
exercise such powers and perform such duties as are expressly
delegated to it by the terms of this Agreement or any other Loan
Document, together with such powers as are reasonably incidental
thereto. Notwithstanding any provision to the contrary contained
elsewhere in this Agreement or in any other Loan Document, the
Agent shall not have any duties or responsibilities, except those
expressly set forth herein, nor shall the Agent have or be deemed
to have any fiduciary relationship with any Bank, and no implied
covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan
Document or otherwise exist against the Agent.
11.02. Delegation of Duties. The Agent may execute any of
its duties under this Agreement or any other Loan Document by or
through agents, employees or attorneys-in-fact and shall be
entitled to advice of counsel concerning all matters pertaining
to such duties. The Agent shall not be responsible for the
negligence or misconduct of any agent or attorney-in-fact that it
selects with reasonable care.
11.03. Liability of Agent. None of the Agent-Related
Persons shall (a) be liable for any action taken or omitted to be
taken by any of them under or in connection with this Agreement
or any other Loan Document (except for its own gross negligence
or willful misconduct), or (b) be responsible in any manner to
any of the Lenders or the Issuing Bank for any recital,
statement, representation or warranty made by ATSC, Borrower or
any Subsidiary or Affiliate of ATSC or the Borrower, or any
officer thereof, contained in this Agreement or in any other Loan
Document, or in any certificate, report, statement or other
document referred to or provided for in, or received by the Agent
under or in connection with, this Agreement or any other Loan
Document, or the validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Loan
Document, or for any failure of ATSC, the Borrower or any other
party to any Loan Document to perform its obligations hereunder
or thereunder. No Agent-Related Person shall be under any
obligation to any Lender or the Issuing Bank to ascertain or to
inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any
other Loan Document, or to inspect the Properties, books or
records of ATSC, the Borrower or any of the Subsidiaries or
Affiliates of ATSC or the Borrower.
11.04. Reliance by Agent.
(a) The Agent shall be entitled to rely, and shall be
fully protected in relying, upon any writing, resolution, notice,
consent, certificate, affidavit, letter, facsimile, telex or
telephone message, statement or other document or conversation
believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons, and upon advice and
statements of legal counsel (including counsel to the Borrower),
independent accountants and other experts selected by the Agent.
The Agent shall be fully justified in failing or refusing to take
any action under this Agreement or any other Loan Document unless
it shall first receive such advice or concurrence of the
Requisite Lenders as it deems appropriate and, if it so requests,
it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred
by it by reason of taking or continuing to take any such action.
The Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement or any other Loan
Document in accordance with a request or consent of the Requisite
Lenders and such request and any action taken or failure to act
pursuant thereto shall be binding upon all of the Lenders and the
Issuing Bank.
(b) For purposes of determining compliance with the
conditions specified in Section 4.01, each Lender that has
executed this Agreement shall be deemed to have consented to,
approved or accepted or to be satisfied with, each document or
other matter either sent by the Agent to such Lender for consent,
approval, acceptance or satisfaction, or required thereunder to
be consented to or approved by or acceptable or satisfactory to
such Lender.
11.05. Notice of Default. The Agent shall not be deemed to
have knowledge or notice of the occurrence of any Potential Event
of Default or Event of Default, except with respect to defaults
in the payment of principal, interest and fees required to be
paid to the Agent for the account of the Lenders, unless the
Agent shall have received written notice from a Lender or the
Borrower referring to this Agreement, describing such Potential
Event of Default or Event of Default and stating that such notice
is a "notice of default". In the event that the Agent receives
such a notice, the Agent shall give notice thereof to the
Lenders. The Agent shall take such action with respect to such
Potential Event of Default or Event of Default as shall be
requested by the Requisite Lenders; provided, however, that
unless and until the Agent shall have received any such request,
the Agent may (but shall not be obligated to) take such action,
or refrain from taking such action, with respect to such
Potential Event of Default or Event of Default as it shall deem
advisable or in the best interest of the Lenders.
11.06. Credit Decision. Each Lender expressly acknowledges
that none of the Agent-Related Persons has made any
representation or warranty to it and that no act by the Agent
hereinafter taken, including any review of the affairs of ATSC
and the Borrower and its Subsidiaries shall be deemed to
constitute any representation or warranty by the Agent to any
Lender. Each Lender represents to the Agent that it has,
independently and without reliance upon the Agent and based on
such documents and information as it has deemed appropriate, made
its own appraisal of and investigation into the business,
prospects, operations, property, financial and other condition
and creditworthiness of ATSC and the Borrower and its
Subsidiaries, and all applicable bank regulatory laws relating to
the transactions contemplated thereby, and made its own decision
to enter into this Agreement and extend credit to the Borrower
hereunder. Each Lender also represents that it will,
independently and without reliance upon the Agent and based on
such documents and information as it shall deem appropriate at
the time, continue to make its own credit analysis, appraisals
and decisions in taking or not taking action under this Agreement
and the other Loan Documents, and to make such investigations as
it deems necessary to inform itself as to the business,
prospects, operations, property, financial and other condition
and creditworthiness of the Borrower. Except for notices,
reports and other documents expressly herein required to be
furnished to the Lenders by the Agent, the Agent shall not have
any duty or responsibility to provide any Lender with any credit
or other information concerning the business, prospects,
operations, property, financial and other condition or
creditworthiness of the Borrower which may come into the
possession of any of the Agent-Related Persons.
11.07. Indemnification. Whether or not the transactions
contemplated hereby shall be consummated, the Lenders shall
indemnify upon demand the Agent-Related Persons (to the extent
not reimbursed by or on behalf of the Borrower and without
limiting the obligation of the Borrower to do so), ratably from
and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses
and disbursements of any kind whatsoever which may at any time
(including at any time following the repayment of the Loans and
the termination or resignation of the related Agent) be imposed
on, incurred by or asserted against any such Person any way
relating to or arising out of this Agreement or any document
contemplated by or referred to herein or therein or the
transactions contemplated hereby or thereby or any action taken
or omitted by any such Person under or in connection with any of
the foregoing; provided, however, that no Lender shall be liable
for the payment to the Agent-Related Persons of any portion of
such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements
resulting from such Person's gross negligence or willful
misconduct. Without limitation of the foregoing, each Lender
shall reimburse the Agent upon demand for its ratable share of
any costs or out-of-pocket expenses (including legal fees and the
allocated cost of staff counsel) incurred by the Agent in
connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether
through negotiations, legal proceedings or otherwise) of, or
legal advice in respect of rights or responsibilities under, this
Agreement, any other Loan Document, or any document contemplated
by or referred to herein to the extent that the Agent is not
reimbursed for such expenses by or on behalf of the Borrower.
Without limiting the generality of the foregoing, if the IRS or
any other Governmental Authority of the United States of America
or other jurisdiction asserts a claim that the Agent did not
properly withhold tax from amounts paid to or for the account of
any Lender (because the appropriate form was not delivered, was
not properly executed, or because such Lender failed to notify
the Agent of a change in circumstances which rendered the
exemption from, or reduction of, withholding tax ineffective, or
for any other reason) such Lender shall indemnify the Agent fully
for all amounts paid, directly or indirectly, by the Agent as tax
or otherwise, including penalties and interest, and including any
taxes imposed by any jurisdiction on the amounts payable to the
Agent under this Section 11.07, together with all costs and
expenses and attorneys' fees (including legal fees and the
allocated cost of staff counsel). The obligation of the Lenders
in this Section shall survive the payment of all Obligations
hereunder.
11.08. Agent in Individual Capacity. Bank of America and
its Affiliates may make loans to, issue letters of credit for the
account of, accept deposits from, acquire equity interests in and
generally engage in any kind of banking, trust, financial
advisory or other business with ATSC and the Borrower and its
Subsidiaries and Affiliates as though Bank of America were not
the Agent hereunder and without notice to or consent of the
Lenders. With respect to its Loans, Bank of America shall have
the same rights and powers under this Agreement as any other
Lender and may exercise the same as though it were not the Agent,
and the terms "Lender" and "Lenders" shall include Bank of
America in its individual capacity.
11.09. Successor Agent. The Agent may resign as Agent upon
30 days' notice to the Lenders. If the Agent shall resign as
Agent under this Agreement, the Requisite Lenders shall appoint
from among the Lenders a successor agent for the Lenders which
successor agent shall be approved by the Borrower. If no
successor agent is appointed prior to the effective date of the
resignation of the Agent, the Agent may appoint, after consulting
with the Lenders and the Borrower, a successor agent from among
the Lenders. Upon the acceptance of its appointment as successor
agent hereunder, such successor agent shall succeed to all the
rights, powers and duties of the retiring Agent and the term
"Agent" shall mean such successor agent and the retiring Agent's
appointment, powers and duties as Agent shall be terminated.
After any retiring Agent's resignation hereunder as Agent, the
provisions of this Article XI and Sections 12.03 and 12.04 shall
inure to its benefit as to any actions taken or omitted to be
taken by it while it was Agent under this Agreement. If no
successor agent has accepted appointment as Agent by the date
which is 30 days following a retiring Agent's notice of
resignation, the retiring Agent's resignation shall nevertheless
thereupon become effective and the Lenders shall perform all of
the duties of the Agent hereunder until such time, if any, as the
Requisite Lenders appoint a successor agent as provided for above
except that the Agent shall remain as collateral agent for the
purpose of the Collateral Documents until a successor agent has
been appointed.
11.10. The Arranger. The Arranger shall have no right,
power, obligation, liability, responsibility or duty under this
Agreement other than the right to receive the fee referred to in
Section 2.03(a) and the right to indemnity under Section 12.04
11.11. Co-Agents. None of the Lenders identified on the
facing page or signature pages of this Agreement as a "Co-Agent"
shall have any right or power, obligations, liability,
responsibility or duty under this Agreement other than those
applicable to all Lenders as such. Each Lender acknowledges that
it has not relied, and will not rely, on any of the Lenders so
identified in deciding to enter into this Agreement or in taking
or not taking action hereunder.
11.12. Collateral Matters.
(a) Each Lender and the Issuing Bank authorizes and
directs the Agent to enter into the Collateral Documents for the
benefit of the Lenders and the Issuing Bank. Each Lender and the
Issuing Bank agrees that any action taken by the Agent or the
Requisite Lenders in accordance with the provisions of this
Agreement or the Collateral Documents, and the exercise by the
Agent or the Requisite Lenders of the powers set forth herein or
therein, together with such other powers as are reasonably
incidental thereto, shall be authorized and binding upon all of
the Lenders and the Issuing Bank.
(b) The Agent is hereby authorized on behalf of all
of the Lenders and the Issuing Bank, without the necessity of any
notice to or further consent from any Lender or the Issuing Bank
from time to time prior to an Event of Default, to take any
action with respect to any Collateral or Collateral Documents
which may be necessary to perfect and maintain perfected the
Liens upon the Collateral granted pursuant to the Collateral
Documents.
(c) Each Lender and the Issuing Bank hereby irrevoca
bly authorize the Agent to release any Lien granted to or held by
the Agent upon any Collateral upon (i) any sale of such
Collateral permitted under this Agreement (or any waiver hereof),
(ii) the consummation of the Distribution Center Financing or the
Lease Financing to the extent that the indebtedness incurred in
such transaction is secured by such Collateral as permitted by
the definition of Distribution Center Financing or the Lease
Financing, as the case may be, in Section 1.01 and (iii)
termination of the Commitments and payment and satisfaction of
all Loans, Reimbursement Obligations, other Letter of Credit
Obligations (whether or not due) and all other Obligations which
have matured and which the Agent has been notified in writing are
then due and payable.
11.13. Relations Among Lenders.
(a) Each Lender agrees that it will not take any
action, nor institute any actions or proceedings, against the
Borrower or any other obligor hereunder or any other Loan
Document or with respect to any Collateral, without the prior
written consent of the Requisite Lenders.
(b) The Lenders are not partners or co-venturers, and
no Lender shall be liable for the acts or omissions of, or
(except as otherwise set forth herein in case of the Agent)
authorized to act for, any other Lender.
ARTICLE XII
Miscellaneous
12.01. Assignments and Participations.
(a) At any time after the Initial Funding Date, each
Lender may assign to one or more Eligible Assignees all or a
portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment, Loans or interest
in the Letters of Credit); provided, that (i) each such
assignment in respect of Revolving Loan Commitments or Revolving
Loans shall cover the same percentage of such Lender's Revolving
Loan Commitment, Revolving Loans and Letter of Credit
Obligations, (ii) unless the Agent and the Borrower otherwise
consent, the aggregate amount of the Commitment of the assigning
Lender being assigned pursuant to each such assignment
(determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than
$5,000,000 and shall be an integral multiple of $100,000 (unless
the assigning Lender's Commitment is less than $5,000,000, in
which case the assignment may be in the amount of such
Commitment) provided that assignments between Lenders shall have
no minimum amount, (iii) the Borrower shall consent (which
consent shall not be unreasonably withheld) and the Agent and the
Issuing Bank shall consent to such assignment and (iv) the
parties to each such assignment shall execute and deliver to the
Agent an Assignment and Acceptance, together with processing and
recordation fee of $3,000. From and after the effective date
specified in each Assignment and Acceptance, (A) the assignee
thereunder shall be a party hereto and, to the extent that rights
and obligations hereunder have been assigned to it pursuant to
such Assignment and Acceptance, have the rights and obligations
of a Lender hereunder as fully as if such assignee had been named
as a Lender in accordance with the terms of this Agreement and
(B) the Lender assignor thereunder shall, to the extent that
rights and obligations hereunder have been assigned by it
pursuant to such Assignment and Acceptance, relinquish its rights
and be released from its obligations under this Agreement.
(b) By executing and delivering an Assignment and
Acceptance, the Lender assignor thereunder and the assignee
thereunder confirm to and agree with each other and the other
parties hereto as follows: (i) the assignment made under such
Assignment and Acceptance is made without recourse and, other
than as provided in such Assignment and Acceptance, such
assigning Lender makes no representation or warranty and assumes
no responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement or
any other Loan Document or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this
Agreement or any other Loan Document or any other instrument or
document furnished pursuant hereto; (ii) such assigning Lender
makes no representation or warranty and assumes no responsibility
with respect to the financial condition of the Borrower or the
performance or observance by the Borrower of any of its
obligations under any Loan Document or any other instrument or
document furnished pursuant hereto; (iii) such assignee confirms
that it has received a copy of this Agreement, together with
copies of the financial statements delivered pursuant to Article
VI and such other Loan Documents and other documents and
information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and
Acceptance; (iv) such assignee will, independently and without
reliance upon the Agent, such assigning Lender or any other
Lender and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under this Agreement;
(v) such assignee appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise such powers under
this Agreement and the other Loan Documents as are delegated to
the Agent by the terms hereof and thereof, together with such
powers as are reasonably incidental thereto; and (vi) such
assignee agrees that it will perform in accordance with their
terms all of the obligations which by the terms of this Agreement
are required to be performed by it as a Lender; and (vii) such an
assignee is an Eligible Assignee.
(c) Each Non-U.S. Lender that could become completely
exempt from withholding of U.S. Taxes in respect of payment of
any Obligations due to such Non-U.S. Lender if the Obligations
were in registered form for U.S. Federal income tax purposes and
that holds a Term Note (a "Noteholder") (or, if such Noteholder
is not the beneficial owner thereof, such beneficial owner) shall
deliver to the Borrower prior to or at the time such Non-U.S.
Lender becomes a Noteholder a Form W-8 (Certificate of Foreign
Status of the U.S. Department of Treasury) (or any successor or
related form adopted by the U.S. taxing authorities), together
with an annual certificate stating that such Noteholder or
beneficial owner, as the case may be, (x) is not a "bank" for
purposes of Section 881(c) of the Code (and is not subject to
regulatory or other legal requirements as a bank in any
jurisdiction, and has not been treated as a bank in any filing
with or submission made to any Governmental Authority or rating
agency), (y) is not a 10-percent shareholder (within the meaning
of Section 871(h)(3)(B) of the Code) of the Borrower and (z) is
not a controlled foreign corporation related to the Borrower
(within the meaning of Section 864(d)(4) of the Code). Such
Noteholder or beneficial owner, as the case may be, shall
promptly notify the Borrower if at any time such Noteholder or
beneficial owner, as the case may be, determines that it is no
longer in a position to provide such certification to the
Borrower (or any other form of certification adopted by the U.S.
taxing authorities for such purposes).
(d) A Term Note and the Obligation(s) evidenced
thereby may be assigned or otherwise transferred in whole or in
part only by registration of such assignment or transfer of such
Term Note and the Obligation(s) evidenced thereby on the Register
(and each Term Note shall expressly so provide). Any assignment
or transfer of all or part of such Obligation(s) and the Term
Note evidencing the same shall be registered on the Register only
upon surrender for registration of assignment or transfer of the
Term Note evidencing such Obligation(s), duly endorsed by (or
accompanied by a written instrument of assignment or transfer
duly executed by) the Noteholder thereof, and thereupon a new
Term Note in the same aggregate principal amount shall be issued
to the designated assignee(s), and the assignor shall cancel and
return to the Agent, for the account of the Borrower, the Term
Note replaced by such new Term Note. No assignment of a Term
Note and the Obligation(s) evidenced thereby shall be effective
unless it has been recorded in the Register as provided in this
Section 12.01(d).
(e) The Agent, on behalf of the Borrower, shall
maintain at the address of the Agent referred to in Section 12.10
a copy of each Assignment and Acceptance delivered to it and a
register (the "Register") for the recordation of the names and
addresses of the Lenders (including Noteholders) and the
Commitments of, and principal amounts of the Loans owing to, each
Lender from time to time. The entries in the Register shall be
conclusive, in the absence of manifest error, and the Borrower,
the Agent and the Lenders may (and, in the case of any Loan or
other obligation hereunder not evidenced by a Term Note, shall)
treat each Person whose name is recorded in the Register as the
owner of a Loan or other obligation hereunder as the owner
thereof for all purposes of this Agreement and the other Loan
Documents, notwithstanding any notice to the contrary. Any
assignment of any Loan or other obligation hereunder not
evidenced by a Note shall be effective only upon appropriate
entries with respect thereto being made in the Register. The
Register shall be available for inspection by the Borrower or any
Lender at any reasonable time and from time to time upon
reasonable prior notice.
(f) Upon its receipt of an Assignment and Acceptance
executed by an assigning Lender, the Agent shall, if such Assign
ment and Acceptance has been properly completed and is in substan
tially the form of Exhibit 12.01 and if the conditions for the
assignment referred to in the Assignment and Acceptance set forth
in Section 12.01(a) have been met, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the
Register and the Agent's Loan Account and (iii) give prompt
notice thereof to the Borrower and the other Lenders.
(g) Each Lender may sell participations to one or
more banks or other entities as to all or a portion of its rights
and obligations under this Agreement (including all or a portion
of its Commitment, the Loans owing to it, the Letter of Credit
Obligations); provided, that (i) such Lenders obligations under
this Agreement (including its Commitment) shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, (iii) the
Borrower, the Agent and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement and with
regard to any and all payments to be made under this Agreement,
(iv) the holder of any such participation shall not be entitled
to voting rights under this Agreement; provided, however, that
the participation agreement between a Lender and any of its
participants may provide that such Lender will obtain the
approval of such participant prior to any amendment or waiver of
any provisions of this Agreement which would (A) extend the
maturity date of any Loan in which such participant holds a
participation, (B) reduce the interest rate or any fees
hereunder, or (C) increase the Commitment of the Lender granting
the participation if such increase affects such participant, and
(v) the sale of any such participations which require the
Borrower to file a registration statement with the Commission or
under the securities regulation laws of any state shall not be
permitted.
(h) The holder of any participation shall be entitled
to the benefits of Sections 2.03(f), 2.08(d), 2.09 and 2.10 as
though it were also a Lender hereunder; provided that no
participant shall be entitled to receive any payment or
compensation in excess of that to which such participant's
selling Lender would have been entitled with respect to the
amount of the participation if such Lender had not sold such
participation.
(i) Each Lender agrees to take normal and reasonable
precautions and exercise due care to maintain the confidentiality
of all information identified as "confidential" by the Borrower
and provided to it by ATSC or the Borrower or any Subsidiary of
the Borrower, or by the Agent on ATSC's or the Borrower's or such
Subsidiary's behalf, in connection with this Agreement or any
other Loan Document, and neither it nor any of its Affiliates
shall use any such information for any purpose or in any manner
other than pursuant to the terms contemplated by this Agreement;
except to the extent such information (i) was or becomes
generally available to the public other than as a result of a
disclosure by such Lender, or (ii) was or becomes available on a
non-confidential basis from a source other than the Borrower,
provided such source is not bound by a confidentiality agreement
with the Borrower known to such Lender; provided further,
however, that any Lender may disclose such information (A) at the
request or pursuant to any requirement of any Governmental
Authority to which such Lender is subject or in connection with
an examination of such Lender by any such authority; (B) pursuant
to subpoena or other court process; (C) when required to do so in
accordance with the provisions of any applicable Requirement of
Law; (D) to the extent reasonably required in connection with any
litigation or proceeding to which the Agent, any Lender or their
respective Affiliates may be party, (E) to the extent reasonably
required in connection with the exercise of any remedy hereunder
or under any other Loan Document, and (F) to such Lender's
independent auditors and other professional advisors which are
required to keep such information confidential. Notwithstanding
the foregoing, the Borrower authorizes each Lender to disclose to
any participant or assignee and to any prospective participant or
assignee, such financial and other information in such Lender's
possession concerning ATSC or the Borrower or its Subsidiaries
which has been delivered to Agent or the Lenders pursuant to this
Agreement or which has been delivered to the Agent or the Lenders
by the Borrower in connection with the Lenders' credit evaluation
of the Borrower prior to entering into this Agreement; provided
that, unless otherwise agreed by the Borrower, such participant
or assignee agrees in writing to such Lender to keep such
information confidential to the same extent required of the
Lenders hereunder.
12.02. Assignments to Federal Reserve Banks. Nothing
herein shall prohibit any Lender from pledging or assigning all
or any portion of its Loans to any Federal Reserve Bank in
accordance with applicable law. In order to facilitate such
pledge or assignment, the Borrower hereby agrees that, upon
request of any Lender at any time and from time to time after the
Borrower has made its initial borrowing hereunder, the Borrower
shall provide to such Lender, at the Borrower's own expense, a
promissory note evidencing the Loans owing to such Lender.
12.03. Expenses.
(a) Generally. Whether or not any Funding Date shall
have occurred, the Borrower agrees upon demand to pay, or
reimburse the Agent for, all the Agent's and any of its
Affiliates' costs and expenses of every type and nature
(including the reasonable fees, expenses and disbursements of
counsel to the Agent and each Co-Agent subject to the limitations
set forth in the Fee Letter, including the allocated cost of
staff counsel and other legal, travel, search and filing fees and
expenses) and all fees, taxes (except income and franchise
taxes), assessments and duties incurred by the Agent or its
Affiliates in connection with (i) the negotiation, preparation
and execution of this Agreement (including the satisfaction or
attempted satisfaction of any of the conditions set forth in
Article IV), the Collateral Documents and the other Loan
Documents and the making of the Loans hereunder; (ii) the
administration of this Agreement, the Loan Documents, the Loans
and the Collateral; and (iii) the protection, collection or
enforcement of any of the Obligations or the Collateral.
(b) After Default. The Borrower further agrees to
pay, or reimburse the Agent, the Issuing Bank and the Lenders
for, all out-of-pocket costs and expenses, including the
reasonable fees and disbursements of counsel to the Agent, the
Lenders and the Issuing Bank (including the allocated cost of
staff counsel) and also including all costs of settlement after
the occurrence of an Event of Default, (i) in enforcing any
Obligation or in foreclosing against the Collateral or exercising
or enforcing any other right or remedy available by reason of
such Event of Default; (ii) in connection with any refinancing or
restructuring of the credit arrangements provided under this
Agreement in the nature of a "work-out" or in any insolvency or
bankruptcy proceeding, including any costs related to the hiring
of consultants or experts; (iii) in commencing, defending or
intervening in any litigation or in filing a petition, complaint,
answer, motion or other pleadings in any legal proceeding
relating to the Borrower and related to or arising out of the
transactions contemplated hereby or by any of the Loan Documents;
(iv) in taking any other action in or with respect to any suit or
proceeding (whether in bankruptcy or otherwise); (v) in
protecting, preserving, collecting, leasing, selling, taking
possession of, or liquidating any of the Collateral; or (vi)
attempting to enforce or enforcing any security interest in any
of the Collateral or any other rights under the Collateral
Documents. Any payments made by the Borrower or received by the
Agent and applied as reimbursements for costs and expenses under
this Section 12.03(b) shall be apportioned among the Agent, the
Issuing Bank and the Lenders in the order of priority set forth
in Section 2.05(b).
12.04. Indemnity. The Borrower further agrees to defend,
protect, indemnify, and hold harmless the Agent, the Arranger,
the Issuing Bank and each and all of the Lenders, each of their
respective Affiliates and each of the respective officers,
directors, employees and agents of each of the foregoing
(collectively, the "Indemnified Parties") from and against any
and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, claims, costs, expenses and
disbursements of any kind or nature whatsoever (including the
fees and disbursements of counsel (including the allocated cost
of staff counsel) for such Indemnified Parties in connection with
any investigative, administrative or judicial proceeding, whether
or not such Indemnified Parties shall be designated a party
thereto), imposed on, incurred by, or asserted against such
Indemnified Parties in any manner relating to or arising out of
the Commitment Letter, the transactions contemplated hereby
(whether or not consummated), the capitalization of the Borrower,
the Subordinated Notes, this Agreement, the Collateral Documents
or any of the other Loan Documents, the Commitments, the making
of and participation in the Loans or the Letters of Credit, or
the use or intended use of the Letters of Credit and the proceeds
of the Loans hereunder (collectively, the "Indemnified Matters");
provided, that the Borrower shall have no obligation to an
Indemnified Party hereunder with respect to (a) matters for which
such Indemnified Party has been compensated pursuant to or for
which an exemption is provided in Section 2.03(f), 2.08(d) or any
other provision of this Agreement and (b) Indemnified Matters
caused by or resulting from the gross negligence or willful
misconduct of that Indemnified Party, as determined by a final
judgment of a court of competent jurisdiction. To the extent
that the undertaking to indemnify, pay and hold harmless set
forth in the preceding sentence may be unenforceable because it
is violative of any law or public policy, the Borrower shall
contribute the maximum portion which it is permitted to pay and
satisfy under applicable law, to the payment and satisfaction of
all Indemnified Matters incurred by the Indemnified Parties.
12.05. Change in Accounting Principles. Except as
otherwise provided herein, if any changes in accounting
principles from those used by ATSC or the Borrower in the
preparation of the financial statements dated as of April 30,
1994 are hereafter required or permitted by the rules,
regulations, pronouncements and opinions of the Financial
Accounting Standards Board of the American Institute of Certified
Public Accountants (or successors thereto or agencies with
similar functions) and are adopted by ATSC or the Borrower with
the agreement of its independent certified public accountants and
such changes result in a change in the method of calculation of
any of the financial covenants, standards or terms found in
Articles VIII and IX hereof, the parties hereto agree to enter
into negotiations in order to amend such provisions so as to
reflect equitably such changes with the desired result that the
criteria for evaluating ATSC's or the Borrower's financial
condition shall be the same after such changes as if such changes
had not been made; provided, however, that no change in generally
accepted accounting principles that would affect the method of
calculation of any of the financial covenants, standards or terms
shall be given effect in such calculations until such provisions
are amended, in a manner satisfactory to the Requisite Lenders,
to so reflect such change in accounting principles.
12.06. Setoff. In addition to any Liens granted to the
Agent, the Issuing Bank or the Lenders and any rights now or
hereafter granted under applicable law and not by way of
limitation of any such Lien or rights, upon the occurrence and
during the continuance of any Event of Default, each Lender and
the Issuing Bank is hereby authorized by the Borrower at any time
or from time to time, without notice to the Borrower, or to any
other Person (any such notice being hereby expressly waived) to
set off and to appropriate and to apply any and all deposits
(general or special, including indebtedness evidenced by
certificates of deposit, whether matured or unmatured but not
including trust accounts) and any other Indebtedness at any time
held or owing by that Lender or the Issuing Bank to or for the
credit or the account of the Borrower against and on account of
the Obligations of the Borrower to that Lender or the Issuing
Bank including, but not limited to, all Loans and Letter of
Credit Obligations and all claims of any nature or description
arising out of or connected with this Agreement or any of the
other Loan Documents, irrespective of whether or not (a) that
Lender or the Issuing Bank shall have made any demand hereunder
or (b) the Agent shall have declared the principal of and
interest on the Loans and other amounts due hereunder to be due
and payable as permitted by Article X and although said
obligations and liabilities, or any of them, may be contingent or
unmatured. Each Lender and the Issuing Bank agrees that it shall
not, without the express consent of the Agent, and that it shall,
to the extent it is lawfully entitled to do so during the
continuation of an Event of Default, upon the request of the
Agent, exercise its set-off rights hereunder against any accounts
of the Borrower now or hereafter maintained with such Lender or
the Issuing Bank.
12.07. Ratable Sharing. Subject to Sections 2.05(c) and
2.06(b), the Lenders agree among themselves that (a) with respect
to all amounts received by them which are applicable to the
payment of the Obligations (excluding the fees described or
referred to in Section 2.04), equitable adjustment will be made
so that, in effect, all such amounts will be shared among them
ratably in accordance with their Pro Rata Shares, whether
received by voluntary payment, by the exercise of the right of
set-off or banker's lien, by counterclaim or cross action or by
the enforcement of any or all of the Obligations (excluding the
fees described or referred to in Section 2.03) or the Collateral,
(b) if any of them shall by voluntary payment or by the exercise
of any right of counterclaim, setoff, banker's lien or otherwise,
receive payment of a proportion of the aggregate amount of the
Obligations held by it which is greater than its Pro Rata Share
of the payments on account of the Obligations (excluding the fees
described or referred to in Section 2.03), the one receiving such
excess payment shall purchase, without recourse or warranty, an
undivided interest and participation (which it shall be deemed to
have done simultaneously upon the receipt of such payment) in
such Obligations owed to the others so that all such recoveries
with respect to such Obligations shall be applied ratably in
accordance with their Pro Rata Shares; provided, however, that if
all or part of such excess payment received by the purchasing
party is thereafter recovered from it, those purchases shall be
rescinded and the purchase prices paid for such participations
shall be returned to that party to the extent necessary to adjust
for such recovery, but without interest except to the extent the
purchasing party is required to pay interest in connection with
such recovery. The Borrower agrees that any Lender so purchasing
a participation from another Lender pursuant to this Section
12.07 may, to the fullest extent permitted by law, exercise all
its rights of payment (including, subject to Section 12.06, the
right of setoff) with respect to such participation as fully as
if such Lender were the direct creditor of the Borrower in the
amount of such participation.
12.08. Amendments and Waivers. (a) No amendment or
modification of any provision of this Agreement shall be
effective without the written agreement of the Requisite Lenders
and the Borrower, and no termination or waiver of any provision
of this Agreement, or consent to any departure by the Borrower
therefrom, shall in any event be effective without the written
concurrence of the Requisite Lenders, which the Requisite Lenders
shall have the right to grant or withhold at their sole
discretion provided, however, that no amendment, modification or
waiver shall, unless evidenced by a writing signed by or on
behalf of all the Lenders, do any of the following: (i) increase
the Commitment of any Lender (other than by assignment); (ii)
reduce the principal of, or rate of interest on, the Loans or the
amount of any fees payable hereunder; (iii) extend the Final
Maturity Date; (iv) release the ATSC Guaranty or release all or
substantially all of the Collateral under the Collateral
Documents (other than as specifically provided hereunder); (v)
change the definitions of "Pro Rata Shares" or "Requisite
Lenders"; or (vi) amend this Section 12.08(a).
(b) No amendment, modification, termination, or
waiver of any provision of this Agreement or any Loan Documents
shall, unless in writing and signed by the Agent in addition to
the Requisite Lenders or Lenders, as the case may be, affect the
rights or duties of the Agent under this Agreement or any Loan
Documents. The Agent may, but shall have no obligation to, with
the concurrence of any Lender, execute amendments, modifications,
waivers or consents on behalf of such Lender.
(c) Any waiver or consent shall be effective only in
the specific instance and for the specific purpose for which it
was given. No notice to or demand on the Borrower in any case
shall entitle the Borrower to any other or further notice or
demand in similar or other circumstances.
(d) Any amendment, modification, termination, waiver
or consent effected in accordance with this Section 12.08 shall
be binding on each assignee, transferee, recipient of a Lender's
Commitment or Loans, each future assignee, transferee, recipient
of a Lender's Commitment or Loans and, if signed by the Borrower,
on the Borrower.
12.09. Independence of Covenants. All covenants hereunder
shall be given independent effect so that if a particular action
or condition is not permitted by any of such covenants, the fact
that it would be permitted by an exception to, or be otherwise
within the limitations of, another covenant shall not avoid the
occurrence of an Event of Default or Potential Event of Default
if such action is taken or condition exists.
12.10. Notices.
(a) Unless otherwise specifically provided herein,
all notices, requests and other communications provided for
hereunder shall be in writing (including by facsimile
transmission, provided that any matter transmitted by the
Borrower by facsimile shall be immediately confirmed by a
telephone call to the recipient at the number specified in
Schedule 1.01(a)) and mailed, faxed or delivered: if to the
Borrower or the Agent, to the address or facsimile number
specified on the signature pages hereof and, if to any Lender, to
the address or facsimile number specified for notices in Schedule
1.01(a) or, as to the Borrower or the Agent, to such other
address as shall be designated by such party in a written notice
to the other parties, and as to each other party, at such other
address as shall be designated by such party in a written notice
to the Borrower and the Agent.
(b) All such notices, requests and communications
shall, when transmitted by overnight (next-day) delivery or
faxed, be effective on the next day or when transmitted by
facsimile machine, respectively; if mailed, be effective upon the
third Business Day after the date deposited into the U.S. mail,
or if delivered, be effective upon delivery; except that notices
pursuant to Article II or XI shall not be effective until
actually received by the Agent.
(c) Any notice, request or communication permitted to
be given by telephone shall be confirmed immediately in writing,
including by facsimile.
(d) The Borrower acknowledges and agrees that any
agreement of the Agent and the Lenders to receive certain notices
by telephone and facsimile is solely for the convenience and at
the request of the Borrower. The Agent and the Lenders shall be
entitled to rely on the authority of any Person purporting to be
a Person authorized by the Borrower to give such notice and the
Agent and the Lenders shall not have any liability to the
Borrower or any other Person on account of any action taken or
not taken by the Agent or the Lenders in reliance upon such
telephonic or facsimile notice. The obligation of the Borrower
to repay the Loans shall not be affected in any way or to any
extent by any failure by the Agent and the Lenders to receive
written confirmation of any telephonic or facsimile notice or the
receipt by the Agent and the Lenders of a confirmation which is
at variance with the terms understood by the Agent and the
Lenders to be contained in the telephonic or facsimile notice.
12.11. Survival of Warranties and Agreements. All
agreements, representations and warranties made herein shall
survive the execution and delivery of this Agreement and the
other Loan Documents and the making of the Loans hereunder.
12.12. Failure or Indulgence Not Waiver; Remedies
Cumulative. No failure or delay on the part of the Agent, the
Issuing Bank or any Lender in the exercise of any power, right or
privilege under any of the Loan Documents shall impair such
power, right or privilege or be construed to be a waiver of any
default or acquiescence therein, nor shall any single or partial
exercise of any such power, right or privilege preclude any other
or further exercise thereof or of any other right, power or
privilege. All rights and remedies existing under the Loan
Documents are cumulative to and not exclusive of any rights or
remedies otherwise available.
12.13. Marshalling; Recourse to Security; Payments Set
Aside. Neither any Lender nor the Agent shall be under any
obligation to marshal any assets in favor of the Borrower or any
other party or against or in payment of any or all of the
Obligations. Recourse to security shall not be required at any
time. To the extent that the Borrower makes a payment or
payments to the Agent or the Lenders, or the Agent or the Lenders
enforce their security interests or exercise their rights of
setoff, and such payment or payments or the proceeds of such
enforcement or setoff or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside
and/or required to be repaid to a trustee, receiver or any other
party under any bankruptcy law, state or federal law, common law
or equitable cause, then to the extent of such recovery, the
obligation or part thereof originally intended to be satisfied,
and all Liens, right and remedies therefor, shall be revived and
continued in full force and effect as if such payment had not
been made or such enforcement or setoff had not occurred.
12.14. Severability. In case any provision in or
obligation under this Agreement or the other Loan Documents shall
be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions
or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired
thereby.
12.15. Headings. Article and Section headings in this
Agreement are included herein for convenience of reference only
and shall not constitute a part of this Agreement for any other
purpose or be given any substantive effect.
12.16. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY,
AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK.
12.17. Successors and Assigns. This Agreement and the
other Loan Documents shall be binding upon the parties hereto and
their respective successors and assigns and shall inure to the
benefit of the parties hereto and the successors and permitted
assigns of the Lenders. The terms and provisions of this
Agreement shall inure to the benefit of any assignee or
transferee of the Loans and the Commitments of any Lender (to the
extent such assignment or transfer is effected in accordance with
Section 12.01), and in the event of such transfer or assignment,
the rights and privileges herein conferred upon Lenders shall
automatically extend to and be vested in such transferee or
assignee, all subject to the terms and conditions hereof. The
Borrower's rights or any interest therein hereunder, and the
Borrower's duties and Obligations hereunder, may not be assigned
without the written consent of all the Lenders.
12.18. Consent to Jurisdiction and Service of Process;
Waiver of Jury Trial. ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST
THE BORROWER WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF
COMPETENT JURISDICTION IN THE STATE OF NEW YORK, AND BY EXECUTION
AND DELIVERY OF THIS AGREEMENT, THE BORROWER ACCEPTS, FOR ITSELF
AND IN CONNECTION WITH ITS PROPERTIES, GENERALLY AND
UNCONDITIONALLY, THE NONEXCLUSIVE JURISDICTION OF THE AFORESAID
COURTS, AND IRREVOCABLY AGREES TO BE BOUND BY ANY FINAL JUDGMENT
RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE
OTHER LOAN DOCUMENTS FROM WHICH NO APPEAL HAS BEEN TAKEN OR IS
AVAILABLE. THE BORROWER IRREVOCABLY CONSENTS TO THE SERVICE OF
PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR
PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR
CERTIFIED MAIL, POSTAGE PREPAID, TO ITS RESPECTIVE NOTICE
ADDRESSES SPECIFIED ON THE SIGNATURE PAGES HEREOF, SUCH SERVICE
TO BECOME EFFECTIVE TEN DAYS AFTER SUCH MAILING. EACH OF THE
BORROWER, THE AGENT, THE CO-AGENTS AND THE LENDERS IRREVOCABLY
WAIVES (A) TRIAL BY JURY IN ANY ACTION OR PROCEEDING WITH RESPECT
TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, AND (B) ANY
OBJECTION (INCLUDING ANY OBJECTION OF THE LAYING OF VENUE OR
BASED ON THE GROUNDS OF FORUM NON CONVENIENS) WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING
WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY
JURISDICTION SET FORTH ABOVE. NOTHING HEREIN SHALL AFFECT THE
RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR
SHALL LIMIT THE RIGHT OF ANY LENDER TO BRING PROCEEDINGS AGAINST
THE BORROWER IN THE COURTS OF ANY OTHER JURISDICTION.
12.19. Effect of Amendment and Restatement. On the Initial
Funding Date, the Existing Credit Agreement, the ATSC Pledge
Agreement (as defined in the Existing Credit Agreement) and the
Borrower Pledge Agreement (as defined in the Existing Credit
Agreement) shall be amended, restated and superseded in their
entirety. The parties hereto acknowledge and agree that (a) this
Agreement and the other Loan Documents, whether executed and
delivered in connection herewith or otherwise, do not constitute
a novation, payment and reborrowing, or termination of the
"Obligations" (as defined in the Existing Credit Agreement) under
the Existing Credit Agreement as in effect prior to the Initial
Funding Date; (b) such "Obligations" are in all respects
continuing (as amended and restated hereby) with only the terms
thereof being modified as provided in this Agreement; (c) the
Liens, guarantees and security interests as granted under the
Collateral Documents securing payment of such "Obligations" are
in all respects continuing and in full force and effect and
secure the payment of the Obligations (as defined in this
Agreement); and (d) upon the effectiveness of this Agreement all
loans outstanding under the Existing Credit Agreement immediately
before the effectiveness of this Agreement will be continued as
Revolving Loans hereunder and all outstanding letters of credit
under the Existing Credit Agreement will be continued as Letters
of Credit hereunder, in each case on the terms and conditions set
forth in this Agreement.
12.20. Counterparts; Effectiveness; Inconsistencies.
(a) This Agreement and any amendments, waivers, consents, or
supplements may be executed in counterparts, each of which when
so executed and delivered shall be deemed an original, but all
such counterparts together shall constitute but one and the same
instrument.
(b) This Agreement shall become effective against
each of the Borrower, each Lender, the Co-Agents and the Agent
hereto on the date (the "Effective Date") when all of such
parties have duly executed and delivered this Agreement to each
other (delivery by the Borrower to the Co-Agents and the Lenders
and by any Co-Agent or any Lender to the Borrower and any
Co-Agent or any other Lender being deemed to have been made by
delivery to the Agent).
(c) This Agreement and each of the other Loan
Documents shall be construed to the extent reasonable to be
consistent one with the other, but to the extent that the terms
and conditions of this Agreement are actually inconsistent with
the terms and conditions of any other Loan Document, this
Agreement shall govern.
IN WITNESS WHEREOF, this Agreement has been duly
executed on the date set forth above.
ANNTAYLOR, INC., as Borrower
By: /s/ Walter J. Parks _
Title: Senior Vice President -- Finance
Address for Notices:
142 West 57th Street
New York, New York 10019
Attention: Jocelyn Barandiaran,
Vice President/Secretary
and General Counsel
Facsimile No.: (212) 541-3299
Telephone No.: (212) 541-3318
With a copy to:
AnnTaylor, Inc.
414 Chapel Street
New Haven, CT 06511
Attention: Walter J. Parks
Vice President - Finance
Facsimile No.: (203) 865-2756
Telephone No.: (203) 865-0811
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent
By: /s/ Dietmar Schiel _
Title: Vice President
Address for Notices:
Global Agency #5596
1455 Market Street, 12th Floor
San Francisco, California 94103
Attention: Dietmar Schiel
Facsimile No.: (415) 622-4894
Telephone No.: (415) 953-8501
Address for Payments:
ABA #121-000-358SF
1850 Gateway Boulevard
Concord, California 94502
Credit to Account Number:
Reference: AnnTaylor
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Co-Agent
By: /s/ Dietmar Schiel _
Title: Vice President
FLEET BANK, NATIONAL ASSOCIATION,
as Co-Agent
By: /s/ Marlene K. Haddad _
Title: Vice President
LENDERS
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By: /s/ John Pocalyko _
Title: Vice President
FLEET BANK, NATIONAL ASSOCIATION
By: /s/ Marlene K. Haddad _
Title: Vice President
LTCB TRUST COMPANY
By: /s/ Rene O. LeBlanc _
Title: Senior Vice President
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Mark Williams _
Title: Vice President
SHAWMUT BANK, N.A.
By: /s/ Linda Thomas _
Title: Managing Director
SCHEDULE 1.01(a)
Lending Offices
Domestic Lending Office Eurodollar Lending Office
BANK OF AMERICA NATIONAL TRUST Same
AND SAVINGS ASSOCIATION
PSO #5693
1850 Gateway Boulevard
Concord, CA 94520
Attention: Robert Simpson
Telephone: (510) 675-7340
Facsimile: (510) 675-7531/32
FLEET BANK, NATIONAL ASSOCIATION Same
Secured Lending Dept. CT HM M02B
One Constitution Plaza
Hartford, CT 06115
Attention: Robert Tardiff
Telephone: (203) 244-5748
Facsimile: (203) 244-6285
LTCB TRUST COMPANY Same
165 Broadway
New York, NY 10006
Attention: Winston Brown
Telephone: (212) 335-4854
Facsimile: (212) 608-3081
PNC BANK, NATIONAL ASSOCIATION Same
335 Madison Avenue
New York, NY 10017
Attention: Anna Di Rocco
Telephone: (212) 557-5442
Facsimile: (212) 557-5461
SHAWMUT BANK, N.A. Same
One Federal Street
Boston, MA 02211
Attention: Judi Whalen
Telephone: (617) 292-3907
Facsimile: (617) 292-3241
SCHEDULE 1.01(b)
Commitments
Revolving
Loan Term Loan Total Pro
Bank Commitment Commitment Commitment Rata Share
Bank of America Nat'l $33,333,333 $25,000,000 $58,333,333 38.88888867%
Trust & Savings Assoc
Fleet Bank, National $33,333,333 $0 $33,333,333 22.22222200%
Association
LTCB Trust Company $16,666,667 $0 $16,666,667 11.11111133%
PNC Bank, National
Assoc $16,666,667 $0 $16,666,667 11.11111133%
Shawmut Bank, N.A. $25,000,000 $0 $25,000,000 16.66666667%
TOTAL: $125,000,000 $25,000,000 $150,000,000 100.0000000%
SCHEDULE 3.01
Existing Letters of Credit
Bank of
America L/C AnnTaylor Face Expiration
Number L/C Number Amount Date Issued Date
45940 623067 $4,018.50 Sept. 26, 1995 Oct. 31, 1995
45941 623075 $32,729.50 Sept. 26, 1995 Oct. 31, 1995
45942 601896 $6,573.60 Sept. 26, 1995 Jan. 22, 1996
45943 601918 $40,768.20 Sept. 26, 1995 Jan. 22, 1996
45944 601888 $29,937.60 Sept. 26, 1995 April 5, 1996
136513s 47222 $263,262.51 April 15, 1995 April 15, 1996
136514s 57222 $1,375,000.00 June 23, 1995 March 7, 1996
806028s 27222 $4,000,000.00 May 17, 1994 April 30, 1996
Total: $5,752,289.91
SCHEDULE 4.01
UCC Filing Jurisdictions
AnnTaylor, Inc.
Alabama Secretary of State
Arizona Secretary of State
Arkansas Secretary of State
Office of the Clerk of the
Circuit Court and
Ex Officio Recorder of
Pulaski County
California Secretary of State
Colorado Secretary of State
Connecticut Secretary of State
Delaware Secretary of State
District of
Columbia Recorder of Deeds of the District of Columbia
Florida Secretary of State
Georgia Clerk of the Superior Court of Fulton County
Hawaii Registrar of Conveyances
Illinois Secretary of State
Indiana Secretary of State
Kentucky Secretary of State of the Commonwealth of
Kentucky
Office of the County Clerk of
Jefferson
County
Louisiana Recorder of Mortgages of Orleans Parish
Maryland Maryland State Department of Assessments and
Taxation
Massachusetts Secretary of Commonwealth
Michigan Secretary of State
Minnesota Secretary of State
Mississippi Secretary of State
Chancery Clerk of Madison County
Missouri Secretary of State
Nebraska Secretary of State
Nevada Secretary of State
New Hampshire Secretary of State
New Jersey Secretary of State
New Mexico Secretary of State
New York Department of State
North Carolina Secretary of State
Ohio Secretary of State
Oklahoma County Clerk of Oklahoma County
Oregon Secretary of State
Pennsylvania Secretary of the Commonwealth
Rhode Island Secretary of State
South Carolina Secretary of State
Tennessee Secretary of State
Texas Secretary of State
Utah Division of Corporations and Commercial Code
Vermont Secretary of State
Town Clerk of Burlington
Virginia State Corporation Commission
Washington Department of Licensing
Wisconsin Secretary of State
AnnTaylor Stores Corporation
New York Department of State
New York County
SCHEDULE 8.02(b)
Permitted Existing Liens
None.
EXHIBIT 2.01
FORM OF NOTICE OF BORROWING
To: Bank of America National Trust and Savings
Association in its capacity as Agent (the "Agent")
under that certain Amended and Restated Credit
Agreement dated as of September 29, 1995 (the "Credit
Agreement"), by and among AnnTaylor, Inc. (the
"Borrower"), the financial institutions from time to
time party thereto as lenders (the "Lenders"), BA
Securities, Inc., as Arranger, Bank of America National
Trust and Savings Association and Fleet Bank, National
Association, as Co-Agents, and the Agent.
Pursuant to [Section 2.01(b)] [2.02(b)] of the Credit
Agreement, this Notice of Borrowing (the "Notice") represents the
Borrower's request to borrow on , 199_ (the
"Funding Date") from the Lenders on a pro rata basis [Revolving
Loans] [Term Loans] an aggregate principal amount of $
as [Base Rate Loans] [Eurodollar Rate Loans with an Interest
Period of months]. Proceeds of such Loans are to be
disbursed on the Funding Date in immediately available funds [to
the Borrower's account at Bank of America National Trust and
Savings Association, ABA No. , Account No.
, Contact Person: ] [other
payment instructions].
The Borrower hereby certifies that (i) its representation
and warranties as set forth in Section 5.02 of the Credit
Agreement and in any other Loan Document (other than
representations and warranties which expressly speak only as of a
different date and other than for changes permitted or
contemplated by the Credit Agreement), shall be true and correct
in all material respects on and as of the Funding Date; and (ii)
no Event of Default or Potential Event of Default has occurred
and is continuing or will result from the proposed Borrowing.
Unless otherwise defined herein, terms defined in the Credit
Agreement shall have the same meanings in this Notice.
Dated: , 199_.
ANNTAYLOR, INC.
By: _
Title: _
EXHIBIT 2.01(e)
FORM OF TERM NOTE
$ New York, New York
, 199 _
FOR VALUE RECEIVED, the undersigned, ANNTAYLOR, INC., a
Delaware corporation (the "Borrower"), hereby unconditionally
promises to pay to (the "Lender") or its
registered assigns at the office of Bank of America National
Trust and Savings Association referred to as the Agent's Payment
Office in the Credit Agreement described below, in lawful money
of the United States of America and in immediately available
funds, the principal amount of DOLLARS ($
), or, if less, the unpaid principal amount of the Term Loan made
by the Lender pursuant to the Credit Agreement. The principal
amount shall be paid in the amounts and on the dates specified in
the Credit Agreement. The Borrower further agrees to pay
interest in like money at such office on the unpaid principal
amount hereof from time to time outstanding at the rates and on
the dates specified in the Credit Agreement.
The holder of this Term Note is authorized to endorse on the
schedules annexed hereto and made a part hereof or on a
continuation thereof which shall be attached hereto and made a
part hereof the date, amount and interest rate basis of the Term
Loan and the date and amount of each payment or prepayment of
principal with respect thereto, each conversion of all or a
portion thereof to another interest rate basis, each continuation
of all or a portion thereof as the same interest rate basis and,
in the case of Eurodollar Loans, the length of each Interest
Period with respect thereto. Each such endorsement shall
constitute prima facie evidence of the accuracy of the
information endorsed. The failure to make any such endorsement
or any error in any such endorsement shall not affect the
obligations of the Borrower in respect of the Term Loan.
This Term Note (a) is one of the Term Notes referred to in
the Amended and Restated Credit Agreement, dated as of September
29, 1995 (as amended, supplemented or otherwise modified from
time to time, the "Credit Agreement"), among the Borrower, Bank
of America National Trust and Savings Association, as Agent, BA
Securities, Inc., as Arranger, Bank of America National Trust and
Savings Association and Fleet Bank, National Association, as
Co-Agents, the Lender and the other banks and financial
institutions or entities from time to time parties thereto, (b)
is subject to the provisions of the Credit Agreement and (c) is
subject to optional and mandatory prepayment in whole or in part
as provided in the Credit Agreement. This Note is secured and
guaranteed as provided in the Loan Documents. Reference is
hereby made to the Loan Documents for a description of the
properties and assets in which a security interest has been
granted, the nature and extent of the security and the
guarantees, the terms and conditions upon which the security
interests and each guarantee were granted and the rights of the
holder of this Term Note in respect thereof.
Upon the occurrence of any one or more of the Events of Default, all
amounts then remaining unpaid on this Term Note shall become, or may be declared
to be, immediately due and payable, all as provided in the Credit Agreement.
All parties now and hereafter liable with respect to this Term Note,
whether maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.
Unless otherwise defined herein, terms defined in the Credit Agreement and
used herein shall have the meanings given to them in the Credit Agreement.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN OR IN THE CREDIT
AGREEMENT, THIS TERM NOTE MAY NOT BE TRANSFERRED EXCEPT PURSUANT TO AND IN
ACCORDANCE WITH THE REGISTRATION AND OTHER PROVISIONS OF SECTION 12.01 OF THE
CREDIT AGREEMENT.
THIS TERM NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
ANNTAYLOR, INC.
By:
Name:
Title:
SCHEDULE A TO TERM NOTE
LOANS, CONVERSIONS AND REPAYMENTS OF BASE RATE LOANS
Amount of Amount Amount of Amount of Base Unpaid
Date Base Rate Converted Principal of Rate Loans Principal Notation
Loans to Base Base Rate Converted to Balance of Made By
Rate Loans Eurodollar Base Rate
Loans Repaid Loans Loans
Schedule B
to Term Note
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR LOANS
Amount Interest Amount of Amount of Unpaid
Amount of Converted Period and Principal Eurodollar Principal Notation
Date Eurodollar to Eurodollar of Loans Balance of Made By
Loans Eurodollar Rate with Eurodollar Converted Eurodollar
Loans Respect Loans to Base Loans
Thereto Repaid Rate Loans
EXHIBIT 2.03
FORM OF NOTICE OF CONVERSION/CONTINUATION
To: Bank of America National Trust and Savings Association in its
capacity as Agent (the "Agent") under that certain Amended and
Restated Credit Agreement dated as of September 29, 1995 (the "Credit
Agreement"), by and among AnnTaylor, Inc. (the "Borrower"), the
financial institutions from time to time party thereto as lenders (the
"Lenders"), BA Securities, Inc., as Arranger, Bank of America National
Trust and Savings Association and Fleet Bank, National Association, as
Co-Agents, and the Agent.
Pursuant to Section 2.03(c) of the Credit Agreement, this Notice of
Conversion/Continuation (the "Notice") represents the Borrower's irrevocable
election to [insert one or more of the following]:
1 Convert $ in aggregate principal amount of Base Rate
[Revolving] [Term] Loans to Eurodollar Rate [Revolving] [Term] Loans on
, 199_. The initial Interest Period for such Eurodollar Rate Loans is requested
to be a month period.
2 Convert $ in aggregate principal amount of Eurodollar
Rate [Revolving] [Term] Loans with a current Interest Period ending
____________, 199_ to Base Rate [Revolving] [Term] Loans on
, 199_.
3 Continue as Eurodollar Rate [Revolving] [Term] Loans $
in aggregate principal amount of Eurodollar Rate [Revolving] [Term] Loans with a
current Interest Period ending , 199_. The succeeding
Interest Period is requested to be a ( ) month period.
4 The Borrower hereby certifies that no Event of Default has occurred and is
continuing under the Credit Agreement or will result from the proposed
conversion/continuation.
Unless otherwise defined herein, terms defined in the Credit Agreement
shall have the same meanings in this Notice.
Dated: 199_
ANNTAYLOR, INC.
By: _
Title: _
EXHIBIT 4.01(a)(iii)(A)
FORM OF BORROWER PLEDGE AGREEMENT
THIS AMENDED AND RESTATED SECURITY AND PLEDGE AGREEMENT (as such agreement
may be amended, supplemented or otherwise modified from time to time, this
"Agreement"), dated as of September 29, 1995 is made by ANNTAYLOR, INC., a
Delaware corporation, with its principal place of business located at 142 West
57th Street, New York, New York 10019 (the "Grantor"), in favor of BANK OF
AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, with an office located at 1455
Market Street, San Francisco, California 94103, in its capacity as Agent under
the "Credit Agreement" (as defined below) (the "Agent").
R E C I T A L S :
A. The Grantor, the Agent, BA Securities, Inc., as Arranger, Bank of
America National Trust and Savings Association and Fleet Bank, National
Association, as Co-Agents, and certain financial institutions currently and in
the future to be the parties to the Credit Agreement (as defined below) (such
financial institutions being collectively referred to as the "Lenders"), have
entered into a certain Amended and Restated Credit Agreement, dated as of
September 29, 1995 (as such agreement may be amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"; the capitalized terms not
otherwise defined herein are being used as defined in the Credit Agreement);
B. The Grantor and the Agent are parties to the Pledge Agreement, dated
as of July 29, 1994 (the "Existing Pledge Agreement");
C. It is a condition precedent to the effectiveness of the Credit
Agreement and to the making of the Loans by the Lenders and the issuing of the
Letters of Credit by any Issuing Bank that the Existing Pledge Agreement shall
be amended and restated as set forth herein;
NOW, THEREFORE, in consideration of the above premises and in order to
induce the Lenders to make the Loans and each Issuing Bank to issue the Letters
of Credit under the Credit Agreement, the Grantor hereby agrees with the Agent
for its benefit and for the benefit of the Lenders and the Issuing Banks, and
the Agent, by acceptance hereof, hereby agrees, that the Existing Pledge
Agreement is hereby amended and restated in its entirety as follows:
Section 1. Grant of Security. To secure the prompt and complete payment,
observance and performance when due (whether at the stated maturity, by
acceleration or otherwise) of all the Obligations, the Grantor hereby assigns
and pledges to the Agent, and hereby grants to the Agent, for its benefit and
the benefit of the Lenders and the Issuing Banks, a security interest in all of
the Grantor's right, title and interest in and to the following, whether now
owned or existing or hereafter arising or acquired and wheresoever located
(collectively, the "Collateral"):
EQUIPMENT: All machinery and equipment, all manufacturing, distribution,
selling, data processing and office equipment, all furniture, furnishings,
appliances, fixtures and trade fixtures, tools, tooling, molds, dies, vehicles,
vessels, aircraft and all other goods of every type and description (other than
"inventory", as such term is defined in the Uniform Commercial Code in effect on
the date hereof in the State of New York (the "UCC")), in each instance whether
now owned or hereafter acquired by the Grantor and wherever located
(collectively, "Equipment");
GENERAL INTANGIBLES: All rights, interests, choses in action, causes of
action, claims and all other intangible property of the Grantor of every kind
and nature (other than "accounts", as such term is defined in the UCC), in each
instance whether now owned or hereafter acquired by the Grantor, including,
without limitation, all corporate and other business records; all loans,
royalties, and other obligations receivable; all inventions, designs, patents,
patent applications, service marks, trade names and trademarks (including any
applications for the foregoing and whether or not registered) and the goodwill
of the Grantor's business connected with and symbolized by such trademarks,
trade secrets, computer programs, software, printouts and other computer
materials, goodwill, registrations, U.S. registered copyrights, licenses
relating to trademarks and U.S. registered copyrights, franchises, customer
lists, credit files, correspondence and advertising materials; all customer and
supplier contracts, firm sale orders, rights under license and franchise
agreements, and other contracts and contract rights; all interests in
partnerships, joint ventures and other entities; all tax refunds and tax refund
claims; all right, title and interest under leases, subleases, licenses and
concessions and other agreements relating to real or personal property; all pay
ments due or made to the Grantor in connection with any requisition,
confiscation, condemnation, seizure or forfeiture of any property by any person
or governmental authority; all deposit accounts (general or special) with any
bank or other financial institution; all credits with and other claims against
carriers and shippers; all rights to indemnification; all reversionary interests
in pension and profit sharing plans and reversionary, beneficial and residual
interest in trusts; all proceeds of insurance of which the Grantor is
beneficiary; and all letters of credit, guaranties, liens, security interests
and other security held by or granted to the Grantor; and all other intangible
property, whether or not similar to the foregoing, including, without
limitation, all "general intangibles", as such term is defined in the UCC (in
each instance, however and wherever arising, collectively, "General
Intangibles");
CHATTEL PAPER, INSTRUMENTS AND DOCUMENTS: All chattel paper, all
instruments (including, without limitation, (a) the shares of stock described in
Annex I-A hereto (the "Pledged Shares") and all dividends, instruments and other
property from time to time distributed in respect thereof or in exchange
therefor, and (b) the notes and debt instruments described in Annex I-B hereto
(the "Pledged Debt") and all payments thereunder and instruments and other
property from time to time delivered in respect thereof or in exchange
therefor), and all bills of lading, warehouse receipts and other documents of
title and documents, including, without limitation, all "chattel paper",
"instruments" and "documents", as such terms are defined in the UCC, in each
instance whether now owned or hereafter acquired by the Grantor, other than any
promissory note in an amount less than $1,000,000 owing to the Grantor from a
senior executive or key employee of the Grantor (an "Excluded Note")
(collectively, "Chattel Paper, Instruments and Documents"); and
OTHER PROPERTY: All property or interests in property now owned or
hereafter acquired by the Grantor which now may be owned or hereafter may come
into the possession, custody or control of the Agent, any of the Lenders, any
Issuing Bank or any agent or Affiliate of any of them in any way or for any
purpose (whether for safekeeping, deposit, custody, pledge, transmission,
collection or otherwise); and all rights and interests of the Grantor, now
existing or hereafter arising and however and wherever arising, in respect of
any and all (i) notes, drafts, letters of credit, stocks, bonds, and debt and
equity securities, whether or not certificated, and warrants, options, puts and
calls and other rights to acquire or otherwise relating to the same; (ii) money;
(iii) proceeds of loans, including without limitation, all the Loans made to the
Grantor under the Credit Agreement; and (iv) insurance proceeds and books and
records relating to any of the property covered by this Agreement (collectively,
"Other Property");
together, in each instance, with all accessions and additions thereto,
substitutions therefor, and replacements, proceeds and products thereof;
provided, however, that (x) Collateral shall not include Receivables and (y) the
foregoing grant of a security interest shall not include a security interest in
any lease and any property subject to an enforceable lease which by its terms
expressly prohibits the right of the Grantor to grant a security interest in
such lease or property. The Borrower agrees to use its best commercially
reasonable efforts to ensure that no future lease contains any restrictions on
the Borrower's right to grant a security interest in any equipment placed on the
leased premises.
Section 2. Grantor Remains Liable. Anything herein to the contrary
notwithstanding, (a) the Grantor shall remain liable under the contracts and
agreements included in the Collateral to the extent set forth therein to perform
its duties and obligations thereunder to the same extent as if this Agreement
had not been executed, (b) the exercise by the Agent of any of its rights
hereunder shall not release the Grantor from any of its duties or obligations
under the contracts and agreements included in the Collateral (except to the
extent that such exercise prevents the Grantor from satisfying such duties and
obligations), and (c) the Agent shall not have any obligation or liability under
the contracts and agreements included in the Collateral by reason of this
Agreement, nor shall the Agent be obligated to perform any of the obligations or
duties of the Grantor thereunder, to make any payment, to make any inquiry as to
the nature or sufficiency of any payment received by the Grantor or the
sufficiency of any performance by any party under any such contract or agreement
or to take any action to collect or enforce any claim for payment assigned
hereunder.
Section 3. Delivery of Pledged Collateral. All certificates, notes and
other instruments representing or evidencing the Pledged Shares or the Pledged
Debt and all other instruments now owned or at any time hereafter acquired by
the Grantor other than any Excluded Notes (collectively, the "Pledged
Collateral") shall be delivered to and held by or on behalf of the Agent
pursuant hereto (except as otherwise provided in the last sentence of Section
4(f) hereof) and shall be in suitable form for transfer by delivery, or shall be
accompanied by duly executed instruments of transfer or assignments in blank,
all in form and substance satisfactory to the Agent. Upon the occurrence and
during the continuance of an Event of Default, the Agent shall have the right,
at any time in its discretion and without notice to the Grantor, to transfer to
or to register in the name of the Agent or any nominee of the Agent any or all
of the Pledged Collateral, subject only to the revocable rights specified in
Section 8 hereof. In addition, upon the occurrence and during the continuance
of an Event of Default, the Agent shall have the right at any time to exchange
certificates or instruments representing or evidencing Pledged Collateral for
certificates or instruments of smaller or larger denominations.
Section 4. Representations and Warranties. The Grantor represents and
warrants as follows:
(a) As of the date of this Agreement, the locations listed on Annex
II constitute all locations at which Equipment is located, except for
Equipment temporarily in transit. As of the date of this Agreement, the
chief place of business and chief executive office of the Grantor are
located at the address first specified above for the Grantor.
(b) The Grantor is the legal and beneficial owner of the Collateral
free and clear of all liens, security interests or other encumbrances,
except as expressly permitted by subsection 8.02(b) of the Credit
Agreement. For the past five years the business of the Grantor has been
conducted only by the following corporations and under the following
corporate names and not under any trade name or other name:
1) AnnTaylor, Inc.
2) AnnTaylor Factory Stores
3) AnnTaylor Loft
4) AnnTaylor Studio
(c) The Grantor has exclusive possession and control of the
Equipment, except for (i) Equipment in the possession and control of the
Grantor's lessees and licensees under written lease and license agreements
entered into in the ordinary course of business and consistent with past
practice and (ii) Equipment in transit with common or other carriers.
(d) The Pledged Shares have been duly authorized and validly issued
and are fully paid and non-assessable. The Pledged Debt of Grantor's
Subsidiaries (if any), and, to the best of the Grantor's knowledge, all
other Pledged Debt, has been duly authorized, issued and delivered, and is
the legal, valid, binding and enforceable obligation of the issuers
thereof.
(e) The Pledged Shares indicated on Annex I-A hereto constitute all
of the shares of stock held by the Grantor of the respective issuers
thereof. The Pledged Shares and the Pledged Debt constitute all of the
Pledged Collateral except for Pledged Collateral consisting of checks and
drafts received in the ordinary course of business and with respect to
which the Agent has not at any time requested possession and which are not
a material portion of the Collateral under this Agreement or the Trademark
Assignment executed by Grantor, taken as a whole (the "Personal Property
Collateral") either singly or in the aggregate.
(f) This Agreement creates a valid security interest in the
Collateral (other than the Pledged Collateral), securing the payment of the
Obligations, and all filings and other actions necessary or desirable to
perfect such security interest under the Uniform Commercial Code as enacted
in each jurisdiction listed on Annex III hereto have been duly taken or
will be duly taken not later than five Business Days after the date hereof.
The pledge and delivery of the Pledged Collateral pursuant to this
Agreement and all other filings and other actions taken by the Grantor to
perfect such security interest prior to the date hereof, create a valid and
perfected first priority security interest in the Pledged Collateral,
securing the payment of the Obligations except for Pledged Collateral
consisting of checks and drafts received in the ordinary course of business
with respect to which the Agent has not at any time requested possession
and which are not a material portion of the Personal Property Collateral
either singly or in the aggregate.
(g) Other than the filings with the United States Patent and
Trademark Office and filings under the UCC, no authorization, approval or
other action by, and no notice to or filing with, any federal, state or
local governmental authority that have not already been taken or made and
which are in full force and effect, is required (i) for the pledge by the
Grantor of the Pledged Collateral or for the grant by the Grantor of the
security interest in the Collateral granted hereby or for the execution,
delivery or performance of this Agreement by the Grantor, (ii) for the
exercise by the Agent of the voting or other rights provided in this
Agreement with respect to the Pledged Collateral or the remedies in respect
of the Pledged Collateral pursuant to this Agreement (except as may be
required in connection with the disposition thereof by laws affecting the
offering and sale of securities generally), or (iii) for the exercise by
the Agent of any of its other rights or remedies hereunder.
Section 5. Further Assurances.
(a) The Grantor agrees that from time to time, at the expense of the
Grantor, the Grantor will promptly execute and deliver all further
instruments and documents, and take all further action, that may be
necessary or reasonably desirable, or that the Agent may reasonably
request, in order to perfect and protect any security interest granted or
purported to be granted hereby or to enable the Agent to exercise and
enforce its rights and remedies hereunder with respect to any Collateral;
provided, however, that the Grantor shall in no event be required to
execute any leasehold mortgage with respect to any lease. Without limiting
the generality of the foregoing, at the request of the Agent, the Grantor
shall: (i) if an Event of Default shall have occurred and be continuing,
mark conspicuously each document included in the Collateral and, at the
request of the Agent made at any time, and whether or not an Event of
Default shall have occurred, mark each of its records pertaining to the
Collateral with a legend, in form and substance satisfactory to the Agent,
indicating that such document or Collateral is subject to the security
interest granted hereby; and (ii) execute and file such financing or
continuation statements, or amendments thereto, and such other instruments
or notices, as may be necessary or desirable, or as the Agent may
reasonably request, in order to perfect and preserve the security interests
granted or purported to be granted hereby.
(b) The Grantor hereby authorizes the Agent to file one or more
financing or continuation statements, and amendments thereto, relative to
all or any part of the Collateral without the signature of the Grantor
where permitted by law. A carbon, photographic or other reproduction of
this Agreement or any financing statement covering the Collateral or any
part thereof shall be sufficient as a financing statement where permitted
by law.
(c) The Grantor shall furnish to the Agent from time to time
statements and schedules further identifying and describing the Collateral
and such other reports in connection with the Collateral as the Agent may
request, all in reasonable detail.
Section 6. As to Equipment. The Grantor shall:
(a) Keep the Equipment (other than Equipment sold in accordance with
Section 8.02(a) of the Credit Agreement) at the places specified in Section
4(a) hereof and deliver written notice to the Agent at least 30 days prior
to establishing any other location at which it reasonably expects to
maintain Equipment in which jurisdiction all action required by Section 5
hereof shall have been taken with respect to all such Equipment.
(b) Maintain or cause to be maintained in good repair, working order
and condition, excepting ordinary wear and tear and damage due to casualty,
all of the Equipment, and make or cause to be made all appropriate repairs,
renewals and replacements thereof, to the extent not obsolete and
consistent with past practice of the Grantor, as quickly as practicable
after the occurrence of any loss or damage thereto which are necessary or
desirable to such end. The Grantor shall promptly furnish to the Agent a
statement respecting any material loss or damage as a result of a single
occurrence to any of the Equipment which has an aggregate fair market value
exceeding $250,000.
Section 7. As to the Pledged Collateral.
(a) So long as no Event of Default shall have occurred and be
continuing:
(i) The Grantor and not the Agent shall be entitled to
exercise any and all voting and other rights of consent or approval
pertaining to the Pledged Collateral or any part thereof for any
purpose not inconsistent with the terms of this Agreement or the
Credit Agreement; provided, however, that the Grantor shall not
exercise or refrain from exercising any such right without the consent
of the Agent if such action or inaction would have a material adverse
effect on the value of the Pledged Collateral or the benefits to the
Agent, the Lenders and the Issuing Banks including, without
limitation, the validity, priority or perfection of the security
interest granted hereby or the remedies of the Agent hereunder.
(ii) The Grantor and not the Agent shall be entitled to
receive and retain any and all dividends and interest paid in respect
of the Pledged Collateral; provided, however, that any and all
(A) dividends and interest paid or payable other
than in cash in respect of, and instruments and other property
received, receivable or otherwise distributed in respect of, or
in exchange for, any Pledged Collateral,
(B) dividends and other distributions paid or
payable in cash in respect of any Pledged Collateral consisting
of stock of any Subsidiary of the Grantor and dividends and other
distributions paid or payable in cash in respect of any other
Pledged Collateral in connection with a partial or total
liquidation or dissolution or in connection with a reduction of
capital, capital surplus or paid-in-surplus, and
(C) cash paid, payable or otherwise distributed
in respect of principal of, or in redemption of, or in exchange
for, any Pledged Collateral,
shall forthwith be delivered to the Agent, in the case of (A)
above, to hold as Pledged Collateral and shall, if received by the
Grantor, be received in trust for the benefit of the Agent, the
Lenders and the Issuing Banks, be segregated from the other property
or funds of the Grantor, and be forthwith delivered to the Agent, as
Pledged Collateral in the same form as so received (with any necessary
indorsement) and, in the case of (B) and (C) above, to the extent
required under the terms of the Credit Agreement, shall forthwith be
delivered to the Agent to be applied to the Obligations in such order
as provided in subsection 2.06(b) of the Credit Agreement.
(iii) The Agent shall promptly execute and deliver (or cause
to be executed and delivered) to the Grantor all such proxies and
other instruments as the Grantor may reasonably request for the
purpose of enabling the Grantor to exercise the voting and other
rights which it is entitled to exercise pursuant to paragraph (i)
above and to receive the dividends or interest payments which it is
authorized to receive and retain pursuant to paragraph (ii) above.
(b) Upon the occurrence and during the continuance of an Event of
Default and at the Agent's option:
(i) All rights of the Grantor to exercise the voting and
other rights of consent or approval which it would otherwise be
entitled to exercise pursuant to Section 8(a)(i) hereof and to receive
the dividends and interest payments which it would otherwise be
authorized to receive and retain pursuant to Section 8(a)(ii) hereof
shall cease, and all such rights shall thereupon become vested in the
Agent, who shall thereupon have the sole right to exercise such voting
and other rights of consent or approval and to receive and hold as
Pledged Collateral such dividends and interest payments.
(ii) All dividends and interest payments which are received
by the Grantor contrary to the provisions of paragraph (i) of this
Section 8(b) hereof shall be received in trust for the benefit of the
Agent, the Lenders and the Issuing Banks and shall be segregated from
other funds of the Grantor and shall be forthwith paid over to the
Agent as Pledged Collateral in the same form as so received (with any
necessary indorsement).
Section 8. Additional Shares. The Grantor agrees that it will (i) cause
each issuer of the Pledged Shares subject to its control not to issue any stock
or other securities in addition to or in substitution for the Pledged Shares
issued by such issuer, except to the Grantor or as otherwise permitted under the
Credit Agreement, and (ii) pledge hereunder, immediately upon its acquisition
(directly or indirectly) thereof, any and all additional shares of stock or
other securities of each issuer of the Pledged Shares. The Grantor hereby
authorizes the Agent to modify this Agreement by amending Annex I to include
such additional shares or other securities.
Section 9. The Agent Appointed Attorney-in-Fact. The Grantor hereby
irrevocably appoints the Agent the Grantor's attorney-in-fact, with full
authority in the place and stead of the Grantor and in the name of the Grantor
or otherwise, from time to time in the Agent's discretion, to take, upon the
occurrence and during the continuance of an Event of Default, any action and to
execute any instrument which the Agent may deem necessary or advisable to
accomplish the purposes of this Agreement (subject to the rights of the Grantor
under Section 7 hereof), including, without limitation:
(i) to obtain and adjust insurance required to be paid to
the Agent pursuant to Section 7.05 of the Credit Agreement,
(ii) to ask, demand, collect, sue for, recover, compromise,
receive and give acquittance and receipts for moneys due and to become
due under or in respect of any of the Collateral,
(iii) to receive, indorse, and collect any drafts or other
instruments, documents and chattel paper, in connection with clause
(i) or (ii) above,
(iv) to file any claims or take any action or institute any
proceedings which the Agent may deem necessary or desirable for the
collection of any of the Collateral or otherwise to enforce the rights
of the Agent with respect to any of the Collateral, and
(v) to receive, indorse and collect all instruments made
payable to the Grantor representing any dividend, interest payment or
other distribution in respect of the Pledged Collateral or any part
thereof and to give full discharge for the same.
Nothing set forth in this Section 9 and no exercise by the Agent of the
rights and powers granted in this Section 9 shall limit or impair the Grantor's
rights under Section 7 hereof. The Grantor hereby ratifies all that said
attorneys shall lawfully do or cause to be done by virtue hereof. All powers,
authorizations and agencies contained in this Agreement are coupled with an
interest and shall be irrevocable until the Obligations are paid in full and the
commitments of the Lenders to extend credit under the Credit Agreement are
terminated.
Section 10. The Agent May Perform. If the Grantor fails to perform any
agreement contained herein, the Agent, upon written notice to the Grantor if
practicable, may itself perform, or cause performance of, such agreement, and
the expenses of the Agent incurred in connection therewith shall be payable by
the Grantor under Section 14 hereof.
Section 11. The Agent's Duties. The powers conferred on the Agent
hereunder are solely to protect its interest in the Collateral and shall not
impose any duty upon it, in the absence of willful misconduct or gross
negligence, to exercise any such powers. Except for the safe custody of any
Collateral in its possession and the accounting for moneys actually received by
it hereunder, the Agent shall have no duty as to any Collateral. The Agent
shall be deemed to have exercised reasonable care in the custody and
preservation of the Collateral in its possession if the Collateral is accorded
treatment substantially equal to that which the Agent accords its own property,
it being understood that the Agent shall be under no obligation to (i) ascertain
or take action with respect to calls, conversions, exchanges, maturities,
tenders or other matters relative to any Pledged Collateral, whether or not the
Agent has or is deemed to have knowledge of such matters, or (ii) take any
necessary steps to preserve rights against prior parties or any other rights
pertaining to any Collateral, but may do so at its option, and all reasonable
expenses incurred in connection therewith shall be for the sole account of the
Grantor and shall be added to the Obligations.
Section 12. Remedies. If any Event of Default shall have occurred and be
continuing:
(a) The Agent may exercise in respect of the Collateral, in addition
to other rights and remedies provided for herein or otherwise available to
it, all the rights and remedies of a secured party upon default under the
Uniform Commercial Code as in effect from time to time in the State of New
York (the "Code") (whether or not the Code applies to the affected
Collateral) and also may (i) require the Grantor to, and the Grantor hereby
agrees that it will at its expense and upon request of the Agent forthwith,
assemble all or any part of the Collateral as directed by the Agent and
make it available to the Agent at a place to be designated by the Agent
which is reasonably convenient to both parties and (ii) without notice
except as specified below, sell, lease, assign, grant an option or options
to purchase or otherwise dispose of the Collateral or any part thereof in
one or more parcels at public or private sale, at any exchange, broker's
board or at any of the Agent's offices or elsewhere, for cash, on credit or
for future delivery, and upon such other terms as may be commercially
reasonable. The Agent may be the purchaser of any or all of the Collateral
so sold at any public sale (or, if the Collateral is of a type customarily
sold in a recognized market or is of a type which is the subject of widely
distributed standard price quotations, at any private sale) and thereafter
hold the same, absolutely, free from any right or claim of whatsoever kind.
The Agent is authorized, at any such sale, if it deems it advisable so to
do, to restrict the prospective bidders or purchasers of any of the Pledged
Collateral to persons who will represent and agree that they are purchasing
for their own account for investment, and not with a view to the
distribution or sale of any such Pledged Collateral and to take such other
actions as it may deem appropriate to exempt the offer and sale of the
Collateral from any registration requirements of state or federal
securities laws (including, if it deems it appropriate, actions to comply
with Regulation D of the Securities and Exchange Commission under the
Securities Act of 1933, as from time to time amended (the "Securities
Act")). To the extent permitted by law, the Grantor hereby specifically
waives all rights of redemption, stay or appraisal which it has or may have
under any rule of law or statute now existing or hereafter in force. The
Grantor agrees that, to the extent notice of sale shall be required by law,
at least ten days' written notice to the Grantor of the time and place of
any public sale or the time after which any private sale is to be made
shall constitute reasonable notification. The Agent shall not be obligated
to make any sale of Collateral regardless of notice of sale having been
given. The Agent may adjourn any public or private sale from time to time
by announcement at the time and place fixed therefor and such sale may,
without further notice, be made at the time and place to which it was so
adjourned. In case of any sale of all or any part of the Collateral on
credit or for future delivery, the Collateral so sold may be retained by
the Agent until the selling price is paid by the purchaser thereof, but the
Agent shall not incur any liability in case of the failure of such
purchaser to take up and pay for the Collateral so sold and, in case of any
such failure, such Collateral may again be sold upon like notice. The
Agent instead of exercising the power of sale herein conferred upon it, may
proceed by a suit or suits at law or in equity to foreclose the security
interests herein granted and sell the Collateral, or any portion thereof,
under a judgment or decree of a court or courts of competent jurisdiction.
(b) Any cash held by the Agent as Collateral and all cash proceeds
received by the Agent in respect of any sale of, collection from, or other
realization upon all or any part of the Collateral may, in the discretion
of the Agent, be held by the Agent as Collateral for, and/or then or at any
time thereafter applied against (after payment of any amounts payable to
the Agent pursuant to Section 15 hereof) in whole or in part by the Agent,
for the benefit of the Agent, the Lenders and the Issuing Banks, all or any
part of the Obligations in such order as is provided in Section 2.06(b) of
the Credit Agreement. Any surplus of such cash or cash proceeds held by
the Agent and remaining after payment in full of all the Obligations under
this Agreement and the termination of the commitments of the Lenders to
extend credit under the Credit Agreement shall be promptly paid over to the
Grantor or to whomsoever may be lawfully entitled to receive such surplus.
Section 13. Registration Rights.
(a) If the Agent shall determine to exercise its right to sell all or
any of the Pledged Collateral pursuant to Section 12 hereof, the Grantor
agrees that, upon request of the Agent, the Grantor will, at its own
expense:
(i) execute and deliver, and cause each issuer of the
Pledged Collateral which is a Subsidiary contemplated to be sold and
the directors and officers thereof to execute and deliver, all such
instruments and documents, and do or cause to be done all such other
acts and things, as may be necessary or, in the opinion of the Agent,
advisable to register such Pledged Collateral under the provisions of
the Securities Act, and to cause the registration statement relating
thereto to become effective and to remain effective for such period as
prospectuses are required by law to be furnished, and to make all
amendments and supplements thereto and to the related prospectus
which, in the opinion of the Agent, are necessary or advisable, all in
conformity with the requirements of the Securities Act and the rules
and regulations of the Securities and Exchange Commission applicable
thereto;
(ii) use its best efforts to qualify the Pledged Collateral
under the state securities or "Blue Sky" laws and to obtain all
necessary approvals of all Governmental Authorities for the sale of
the Pledged Collateral, as requested by the Agent;
(iii) cause each such issuer to make available to its
security holders, as soon as practicable, an earnings statement which
will satisfy the provisions of Section 10 of the Securities Act; and
(iv) do or cause to be done all such other acts and things
as may be necessary to make such sale of the Pledged Collateral or any
part thereof valid and binding and in compliance with applicable law.
(b) Determination by the Agent to exercise its right to sell any or
all of the Pledged Collateral pursuant to Section 12 hereof without making
a request of the Grantor pursuant to Section 13(a) hereof shall not by the
sole fact of such sale be deemed to be commercially unreasonable.
Section 14. Expenses. The Grantor shall upon written demand pay to the
Agent the amount of any and all expenses, including the fees and disbursements
of its counsel and of any experts and agents, as provided in Section 12.03 of
the Credit Agreement.
Section 15. Amendments, Etc. No amendment or waiver of any provision of
this Agreement nor consent to any departure by the Grantor herefrom shall in any
event be effective unless the same shall be in writing and signed by the party
to be charged therewith, and then such waiver or consent shall be effective only
in the specific instance and for the specific purpose for which given.
Section 16. Notices. All notices and other
communications provided for hereunder shall be given in the manner set forth in
the Credit Agreement and to the addresses first above written or, as to each
party, at such other address as may be designated by such party in a written
notice to the other party.
Section 17. Continuing Security Interest; Termination.
(a) This Agreement shall create a continuing security interest in the
Collateral and shall (i) remain in full force and effect until payment in
full of the Obligations, the termination of the commitments of the Lenders
to extend credit under the Credit Agreement and the termination of the
Credit Agreement, (ii) be binding upon the Grantor, its successors and
assigns and (iii) except to the extent that the rights of any transferor or
assignor are limited by Section 12.01 (concerning assignments) of the
Credit Agreement, inure, together with the rights and remedies of the Agent
hereunder, to the benefit of the Agent, the Lenders and the Issuing Banks,
subject to the terms and conditions of the Credit Agreement. Without
limiting the generality of the foregoing clause (iii), any Lender may
assign or otherwise transfer any interest in any Loan owing to such Lender
to any other Person, and such other Person shall thereupon become vested
with all the benefits in respect thereof granted to the Agent herein or
otherwise, subject, however, to the provisions of Section 12.01 (concerning
assignments) of the Credit Agreement. Nothing set forth herein or in any
other Loan Document is intended or shall be construed to give the Grantor's
successors and assigns any right, remedy or claim under, to or in respect
of this Agreement, any other Loan Document or any Collateral. The
Grantor's successors and assigns shall include, without limitation, a
receiver, trustee or debtor-in-possession thereof or therefor.
(b) Upon the payment in full of the Obligations, the termination of
the commitments of the Lenders to extend credit under the Credit Agreement
and the termination of the Credit Agreement, the security interest granted
hereby shall terminate and all rights to the Collateral shall revert to the
Grantor. Upon any such termination, the Agent shall promptly return to the
Grantor, at the Grantor's expense, such of the Collateral held by the Agent
as shall not have been sold or otherwise applied pursuant to the terms
hereof. The Agent will, at the Grantor's expense, execute and deliver to
the Grantor such other documents as the Grantor shall reasonably request to
evidence such termination.
(c) Upon any release of the Agent's security interest in any part of
the Collateral expressly required to be given by the Agent pursuant to
Section 11.12(c) of the Credit Agreement, the Agent shall execute and
deliver to the Grantor, at the Grantor's expense, all termination
statements, assignments and other documents and instruments as may be
necessary or desirable to release fully the security interests in such
Collateral granted hereby; provided, however, that (i) the Agent shall not
be required to execute any such documents on terms which, in the Agent's
opinion, would expose the Agent to liability or create any obligation or
entail any consequence other than the release of such security interests
without recourse or warranty, and (ii) such release shall not in any manner
discharge, affect or impair the Obligations or any security interests,
liens or other encumbrances upon (or obligations of the Grantor in respect
of) all interests retained by the Grantor, including without limitation,
the proceeds of any sale, all of which shall continue to constitute part of
the Collateral.
Section 18. Applicable Law; Severability. This Agreement shall be
construed in all respects in accordance with, and governed by, the laws of the
State of New York. Whenever possible, each provision of this Agreement shall be
interpreted in such a manner as to be effective and valid under applicable law,
but if any provision of this Agreement shall be prohibited by or invalid under
applicable law, such provision shall be ineffective only to the extent of such
prohibition or invalidity, without invalidating the remainder of such provisions
or the remaining provisions of this Agreement.
Section 19. Consent to Jurisdiction and Service of Process; Waiver of Jury
Trial. ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST THE GRANTOR WITH RESPECT TO
THIS AGREEMENT MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT
JURISDICTION IN THE STATE OF NEW YORK, AND BY EXECUTION AND DELIVERY OF THIS
AGREEMENT, THE GRANTOR ACCEPTS, FOR ITSELF IN AND IN CONNECTION WITH ITS
PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE NONEXCLUSIVE JURISDICTION OF THE
AFORESAID COURTS, AND IRREVOCABLY AGREES TO BE BOUND BY ANY FINAL JUDGMENT
RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT FROM WHICH NO APPEAL HAS BEEN
TAKEN OR IS AVAILABLE. THE GRANTOR IRREVOCABLY CONSENTS TO THE SERVICE OF
PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY
THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID,
TO ITS NOTICE ADDRESS SPECIFIED ON THE FIRST PAGE HEREOF, SUCH SERVICE TO BECOME
EFFECTIVE TEN (10) DAYS AFTER SUCH MAILING. EACH OF THE GRANTOR AND, BY
ACCEPTANCE HEREOF, THE AGENT AND THE LENDERS, IRREVOCABLY WAIVES (A) TRIAL BY
JURY IN ANY ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT, AND (B) ANY
OBJECTION (INCLUDING WITHOUT LIMITATION, ANY OBJECTION OF THE LAYING OF VENUE OR
BASED ON THE GROUNDS OF FORUM NON CONVENIENS) WHICH IT MAY NOW OR HEREAFTER HAVE
TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT
IN ANY JURISDICTION SET FORTH ABOVE. NOTHING HEREIN SHALL AFFECT THE RIGHT TO
SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT OF
ANY LENDER TO BRING PROCEEDINGS AGAINST GRANTOR IN THE COURTS OF ANY OTHER
JURISDICTION.
IN WITNESS WHEREOF, the Grantor has caused this Agreement to be duly
executed and delivered by its officer thereunto duly authorized as of the day
first above written.
ANNTAYLOR, INC.
By:_________________________
Name:_______________________
Title:______________________
Agreed and accepted to as of
the date first above written:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Agent
By: _
Name: _
Title: _
ANNEX I-A
PLEDGED SHARES
Stock
Class of Certificate No. of
Issuer Stock No. Shares
AnnTaylor Travel, Inc. Common 1 1
AnnTaylor Funding, Inc. Common 1 100
AnnTaylor Distribution
Services, Inc. Common 1 1
CAT US Inc. Common 1 2,000
CAT US Inc. Common 11 2,000
C.A.T. (Far East)
Limited Common 5 30,000
C.A.T. (Far East)
Limited Common 8 30,000
ANNEX I-B
PLEDGED DEBT
NONE
ANNEX II
LOCATIONS OF EQUIPMENT
See Attached.
3 15 280 MADISON SQUARE 5901 UNIVERSITY DRIVE HUNTSVILLE AL
358060000 2058372425
3 15 355 RIVERCHASE GALLERIA 2000 RIVERCHASE DR, SPE 208
BIRMINGHAM AL 352440000
3 15 273 LITTLE ROCK 2002 PK PLZ SHOPPING CTR
LITTLE ROCK AR 722050000
5016639571
8 74 742 ARIZONA FACT SHOPS 4250 WEST BOW RD
PHOENIX AZ 850270000 6024659540
4 18 127 TUCSON MALL 4500 N. ORACLE SUITE 455
TUCSON
AZ 857050000 6028884080
4 18 174 BILTMORE FASHION PARK 2560 E. CAMELBACK RD
PHOENIX AZ 850160000 6024683339
4 18 331 SCOTTSDALE FASHION SQ 7014 E CAMELBACK ROAD
SCOTTSDALE AZ 852510000 6024238093
8 74 732 DESERT HILLS (CABAZON) 48400 SEMINOLE DRIVE STE
5000 CABAZON CA 922300000
8 74 740 MARINA SQ (SAN LEANDRO) MARINA SQUARE
SAN LEANDRO CA
945770000
8 74 739 NAPA 681 FACTORY STORE DRIVE NAPA
CA 945580000
8 74 717 CITADEL 100 CITADEL DR, STE 114
COMMERCE CA 900400000 2137257033
8 74 725 BARSTOW 2796 TANGER WAY, SPACE 213
BARSTOW
CA 923110000 6192532999
4 22 383 CARMEL PLAZA 213 OCEAN AVE. + MISSION
AVE CARMEL CA 939210000 4086269565
8 74 715 GILROY 681 LEAVESLEY ROAD, STE 10
GILROY
CA 950200000 4088481188
8 74 714 PETALUMA 2220 PETALUMA BLVD. NORTH
PETALUMA
CA 949520000 7077669592
8 79 799 GILROY 8300 ARROYO CIRCLE
GILROY
CA 950200000
4 22 399 POST STREET 240 POST STREET
SAN FRANCISCO
CA 941080000
4 23 299 BROADWAY PLAZA 1170 BROADWAY PLAZA
WALNUT CREEK
CA 945960000 5109370606
6 64 505 LA CUMBRE II 120 S. HOPE AVE, #F16
SANTA BARBARA
CA 931050000 8055631346
4 23 408 GALLERIA @ SOUTH BAY HAWTHORN BLVD.
REDONDO BEACH
CA 902780000
4 23 330 CORTE MADERA 1616 REDWOOD HIGHWAY
CORTE MADERA CA
949250000 4159270577
4 23 324 EMBARCADERO CENTER EMBARCADERO CENTER #3
SAN FRANCISCO
CA 941110000 4159895355
4 23 197 STONERIDGE MALL 2511 STONERIDGE MALL
PLEASANTON
CA 945880000 5104633240
4 23 94 PALO ALTO 18 STANFORD SHPNG. CTR.
PALO ALTO
CA 943040000 4158530433
4 23 193 SAN FRANSISCO CENTER 865 MARKET STREET
SAN FRANCISCO
CA 941030000 4155432487
6 64 509 BROADWAY PLAZA 1275 BROADWAY PLAZA
WALNUT CREEK CA
945960000 5109338551
8 79 798 MILPITAS GREAT MALL OF BAY AREA
MILPITAS
CA 950350000
6 64 504 BEVERLY CENTER 131 NO. LA CIENEGA #669
LOS ANGELES
CA 900480000 3106594051
4 22 322 VALLEY FAIR 2855 STEVENS CRK #2305
SANTA CLARA
CA 950500000 4082470245
4 22 92 GHIRARDELLI SQUARE 900 NORTH POINT STREET
SAN FRANCISCO
CA 941090000 4157752872
4 21 187 THE OAKS 460 W. HILLCREST DRIVE
THOUSAND OAKS
CA 913600000 8053735352
4 21 71 WOODLAND HILLS 235 PROMENA DE #177
WOODLAND HILLS CA
913670000 8188882774
4 22 192 STONESTOWN GALLERIA 3251 20TH AVENUE
SAN FRANCISCO
CA 941320000 4155640229
4 21 177 PASADENA 495-505 SOUTH LAKE AVE.
PASADENA
CA 911010000 8187924820
4 21 180 DESERT FASHION PLAZA 123 N. PALM CANYON DR.
PALM SPRINGS
CA 922620000 6193277128
4 21 183 MEDIA CITY CENTER 201 E. MAGNOLIA #236
BURBANK
CA 915010000 8185586244
4 21 314 LA CUMBRE I 130 SOUTH HOPE AVENUE, D15
SANTA BARBARA CA
931050000 8055639954
4 21 308 GLENDALE GALLERIA 2176 GLENDALE GALLARIA
GLENDALE
CA 912100000 8182460350
4 20 412 MONTCLAIR PLAZA 2066 MONTCLAIR PLAZA
LANE MONTCLAIR
CA 917630000
4 21 326 SANTA ANITA 400 S. BALDWIN AVE., SUITE
615 ARCADIA CA 910071904 8188214425
4 21 342 SHERMAN OAKS 14066 RIVERSIDE DRIVE
SP268 SHERMAN OAKS
CA 914230000 8187840553
4 21 395 NORTHRIDGE FASHION CTR 9301 TAMPA AVENUE SP124
NORTHRIDGE
CA 913242501
4 22 90 SUTTER STREET 441 SUTTER STREET
SAN FRANCISCO
CA 941080000 4159895381
4 20 415 TOPANGA PLAZA CANOGA PARK CA
4 20 404 7TH MKTPL @ CITICORP PZ 735 SOUTH FIGUEROA
LOS ANGELES
CA 900170000 2136292932
4 22 291 DOWNTOWN PLAZA 545 DOWNTOWN PLAZA #2063
SACRAMENTO
CA 958140000 9164431972
4 19 79 HORTON PLAZA 25 HORTON PLAZA
SAN DIEGO CA 921010000 6192330705
4 19 172 MAIN PLACE 2800 N. MAIN STREET #548
SANTA ANA CA 927010000 7145437668
4 19 173 LA JOLLA 1205 PROSPECT STREET
LA JOLLA CA 920370000 6194540158
4 19 179 BREA MALL 2117 BREA MALL
BREA CA 926210000 7145299002
4 19 184 NORTH COUNTY FAIR 200 E. VIA RANCHO
PKY/S319 ESCONDIDO CA 920250000 6197379195
4 19 185 UNIVERSITY TOWN CTR 4417 LA JOLLA VILLAGE DR.,
N-9 SAN DIEGO CA 921221206 6194506550
4 19 286 SOUTH COAST PLAZA 3333 BRISTOL STREET
COSTA MESA CA 926260000 7147541915
4 20 70 WESTWOOD 1031 WESTWOOD BLVD
LOS ANGELES
CA 900240000 3102086549
4 19 319 FASHION VALLEY 324 FASHION VALLEY
SAN DIEGO
CA 921080000 6196832090
4 20 289 CENTURY CITY 10250 SANTA MONICA DR
LOS ANGELES
CA 900670000 3102773041
4 20 73 BEVERLY HILLS 357 N. CAMDEN DRIVE
BEVERLY HILLS
CA 902100000 3108587840
4 22 282 HILLSDALE SHOPPING CTR 276 HILLSDALE MALL
SAN MATEO
CA 944030000 4155711030
4 20 75 DEL AMO FASHION CTR 239 DEL AMO FASHION CTR.
TORRANCE
CA 905030000 3103716546
4 20 76 BEVERLY CENTER 8522 BEVERLY BLVD/S.782
LOS ANGELES
CA 900480000 3106596655
4 20 171 CITICORP PLAZA 735 SOUTH FIGUEROA
LOS ANGELES
CA 900170000 2136292932
4 22 195 ARDEN FAIR 1689 ARDEN WAY
SACRAMENTO
CA 958150000 9165670290
4 20 182 PALOS VERDES 550 DEEP VALLEY ROAD
ROLLING HILLS
CA 902740000 3105414470
4 20 181 SANTA MONICA PLACE 175 SANTA MONICA PLACE
SANTA MONICA
CA 904010000 3103953650
8 74 741 CAMARILLO 850 VENTURA BLVD.
CAMARILLO
CA 930100000 8053830482
8 74 710 CASTLE ROCK FACT SHOPS 505 FACTORY SHOPS BLVD
CASTLEROCK
CO 801040000 3036883335
4 31 114 CHERRY CREEK 3000 E 1ST AVE, #249
DENVER
CO 802060000 3033551324
4 31 112 SIENA SQUARE 2070 BROADWAY, STORE D
BOULDER
CO 803020000 3034493971
4 31 110 LARIMER SQUARE 1421 LARIMER SQUARE
DENVER
CO 802020000 3038920478
5 5 402 DANBURY FAIR 7 BACKUS AVENUE SP C-115
DANBURY
CT 068100000 2037910761
5 24 23 HARTFORD 1 CIVIC CENTER PLAZA
HARTFORD
CT 061030000 2032784020
5 5 343 TRUMBULL SHOPPING PK 5065 MAIN STREET
TRUMBULL
CT 066110000 2033744234
5 24 353 SOMERSET SQUARE 140 GLASTONBURY BLVD.
GLASTONBURY
CT 060334402 2036599315
5 5 293 STAMFORD TOWN CTR 100 GREYROCK PLACE
STAMFORD
CT 069010000 2033591616
5 5 3 NEW CANAAN 81 ELM STREET
NEW CANAAN
CT 068400000 2039660354
5 24 143 WEST FARMS 216 WEST FARMS MALL
FARMINGTON
CT 060320000 2035218195
5 24 144 BUCKLAND HILLS 194 BUCKLAND HILLS DR.
MANCHESTER
CT 060400000 2036447217
5 5 2 WESTPORT 97 MAIN STREET
WESTPORT
CT 068800000 2032277557
5 5 4 GREENWICH 55 EAST PUTNAM AVENUE
GREENWICH
CT 068300000 2036616455
5 5 1 NEW HAVEN 968 CHAPEL STREET
NEW HAVEN
CT 065100000 2037772304
9 95 378 BOX & HOLD - SPRING '94 130 HAMILTON STREET
NEW HAVEN
CT 065110000 2037722516
7 91 95 ANN TAYLOR DIRECT 130 HAMILTON STREET
NEW HAVEN
CT 065110000 8002898295
1 7 134 UNION STATION 50 MASSACHUSETTS AVE. NE
WASHINGTON
DC 200020000 2023718010
1 7 21 GEORGETOWN PARK 3222 M STREET, N.W.
WASHINGTON
DC 200070000 2023385290
6 61 510 UNION STATION 40 MASSACHUSETTS AVE-- N
E WASHINGTON
DC 200020000 2022892631
1 7 36 MAZZA GALLERIE 5300 WISCONSIN AVENUE
WASHINGTON
DC 200150000 2022441940
1 7 334 K STREET 1720 K STREET, N.W.
WASHINGTON
DC 200060000 2024663544
6 61 506 GEORGETOWN PARK 3222 M STREET NW-SP 23
WASHINGTON
DC 200070000 2023381061
8 71 737 REHOBOTH BEACH REHOBOTH OUTLET CTR
REHOBOTH BEACH DE
199710000
3 16 101 FASHION MALL 321 N. UNIVERSITY DR.
PLANTATION
FL 333240000 3054246707
3 16 303 DADELAND MALL 7415 SOUTHWEST 88TH ST
MIAMI FL 331560000 3056626612
3 16 102 BOYNTON BEACH MALL 801 N. CONGRESS AVENUE
BOYNTON BEACH FL 334260000 4073641211
3 16 304 BOCA RATON TOWN CENTER MALL
BOCA RATON FL
334310000 4073910785
3 16 311 FT. LAUDERDALE 2486B E. SUNRISE BLVD.
FT. LAUDERDALE
FL 333040000 3055665801
3 16 317 BAL HARBOUR SHOPS 9700 COLLINS AVENUE
BAL HARBOUR FL
331540000 3058684455
3 16 363 THE FALLS 8888 HOWARD DRIVE
MIAMI
FL 331760000 3053254047
3 16 63 COCONUT GROVE 3399 VIRGINIA STREET
COCONUT GROVE FL
331330000 3054440146
3 16 398 THE GARDENS 3101 PGA BLVD.-S K-20
PALM BCH GARDENS
FL 334100000
8 72 744 SAWGRASS MILLS 12801 WEST SUNRISE BLVD.
SUNRISE
FL 333230000
3 15 69 ALTAMONTE MALL 451 ALTAMONTE AVENUE
ALTAMONTE SPRGS FL
322010000 4078343909
8 72 731 ORLANDO 5225 INTERNATIONAL DR
ORLANDO
FL 328190000
8 72 722 VERO BEACH 1850 94TH DRIVE SPACE 160
VERO BEACH
FL 329660000 4077782337
8 72 716 ST. AUGUSTINE 2700 STATE ROAD 16
ST. AUGUSTINE
FL 320920000 9048231425
8 72 711 SILVER SANDS 5105 HIGHWAY 98 EAST, STE
113 DESTIN FL 325410000 9046540775
3 15 410 THE OAKS MALL THE OAKS MALL
GAINESVILLE
FL 326050000 9043631869
8 72 701 SAWGRASS MILLS 12801 W.SUNRISE BLVD
SUNRISE
FL 333230000 3058469607
8 72 708 GULF COAST FACT SHOPS 5460 FACT STOPS BLVD. ST
700 ELLENTON FL 342220000
8137236713
3 15 100 OLD HYDE PARK 1618 SNOW AVENUE
TAMPA
FL 336060000 8132511919
3 15 103 THE AVENUES 10300 SOUTHSIDE BLVD.
JACKSONVILLE
FL 322560000 9043631869
3 15 298 WINTER PARK 126 PARK AVENUE NORTH
WINTER PARK FL 327890000 4076285600
3 15 409 WEST SHORE PLAZA 287 WEST SHORE PLAZA-SP C5
TAMPA FL
336090000 8132828819
3 15 347 BRANDON TOWN CENTER 2615 W. BRANDON BLVD.-S 555
BRANDON
FL 335114720
3 15 310 WATERSIDE SHOPS 5475 TAMIAMI TRAIL N., STE
60 NAPLES FL 339630000 8135984454
3 15 391 SEMINOLE TOWNE CTR 117 TOWNE CENTER CIRCLE
SANFORD
FL 327710000 4073213886
3 15 104 UNIVERSITY MALL 2200 FOWLER AVENUE
TAMPA
FL 336120000 8139715200
8 72 743 MAGNOLIA BLUFF RT. 1 BOX 1160
DARIEN
GA 313050000
3 13 302 NORTH POINT MALL 1180 NORTH POINT CIRCLE
ALPHARETTA GA
302020000 4016644915
3 13 284 PERIMETER MALL 4400 ASHFORD DUNWOODY RD
ATLANTA
GA 303460000 4046718874
3 13 163 CUMBERLAND MALL 1216 CUMBERLAND MALL
ATLANTA
GA 303390000 4043196363
3 13 165 AUGUSTA MALL 3450 WRIGHTBORO RD
AUGUSTA
GA 309090000 7066670471
3 13 414 PHIPP'S PLAZA ATLANTA
GA
3 13 294 LENOX SQUARE 3303 PEACHTREE ROAD
ATLANTA
GA 303260000 4042640450
4 30 178 ALA MOANA CENTER 1450 ALA MOANA BLVD #3220
HONOLULU
HI 968140000 8089450028
4 30 327 PEARLRIDGE CENTER 981005 MOANA LUA RD. #121
AIEA HI
967010000 8084878486
2 10 333 OLD ORCHARD CENTER 74 OLD ORCHARD ROAD-S74
SKOKIE
IL 600770000 7086797370
2 10 48 NORTH CLARK STREET 1750 NORTH CLARK ST.
CHICAGO
IL 606140000 3123374462
8 73 721 TUSCOLA B-100 TUSCOLA BLVD., STE B-
100 TUSCOLA IL 619530000 2172532330
2 10 33 CONTINENTAL BANK 231 S LASALLE ST
CHICAGO
IL 606040000 3123325572
2 10 28 OAK STREET 103 EAST OAK STREET
CHICAGO
IL 606110000 3129435411
2 10 25 NORTH MICHIGAN AVENUE 700 N. MICHIGAN AVE.
CHICAGO
IL 606110000 3123350117
2 10 358 NORTHBROOK MALL 2182 NORTHBROOK COURT
NORTHBROOK IL 600621415
2 27 392 WOODFIELD MALL N311 WOODFIELD SHOPPING
SCHAUMBERG IL
601730000
2 27 116 WHEATON TOWN SQUARE 91 NAPERVILLE RD 52
WHEATON
IL 601870000 7086904377
2 27 111 CHARLESTOWNE CENTRE 3102 E. MAIN STREET
ST. CHARLES
IL 601740000 7085847980
2 27 307 OAKBROOK CENTER 208 OAKBROOK CENTER
OAKBROOK IL 605210000 7085734825
8 73 704 GURNEE MILLS 6170 GRAND AVE. STE 745
GURNEE
IL 600310000 7088550100
2 27 35 WOODFIELD MALL WOODFIELD MALL
SCHAUMBURG IL
601730000 7086197270
2 27 389 CIRCLE CENTRE 49 WEST MARYLAND ST
INDIANAPOLIS IN 462250000 3176385330
8 73 728 FREMONT 6245 NO. OLD 27 SUITE C-10
FREMONT
IN 467370000 2198331664
8 73 730 MICHIGAN CTY (LIGHTHOUSE) 601 WABASH STREET, STE 1301
MICHIGAN CITY
IN 463600000 2198793409
2 27 153 SOUTH BEND 6501 N. GRAPE ROAD
MISHAWAKA
IN 465440000 2192776601
2 27 241 KEYSTONE AT THE CROSSING 8701 KEYSTONE CROSSING
INDIANAPOLIS
IN 462400000 3175749445
8 73 729 EDINBURGH 11626 N.E EXECUTIVE DR, F-
40 EDINBURGH IN 461240000
8125260147
3 13 360 OXMOOR CENTER 7900 SHELBYVILLE ROAD
LOUISVILLE
KY 402220000
9 95 37 D.C. FLOW-THRU 7101 DISTRIBUTION DRIVE
LOUISVILLE
KY 402580000
3 13 275 FAYETTE MALL 3473 NICHOLASVILLE RD.
LEXINGTON
KY 405030000 6062730270
3 29 345 CANAL PLACE 333 CANAL STREET
NEW ORLEANS
LA 701300000 5045292306
3 29 106 MALL AT ST. VINCENT 1133 ST. VINCENT AVE. BOX
30 SHREVEPORT LA 711040000
3182269554
3 29 89 NEW ORLEANS CENTRE 1400 POYDRAS STREET
NEW ORLEANS
LA 701120000 5045611002
3 29 98 LAKESIDE MALL 3301 VETERANS BLVD 45A
METAIRIE
LA 700020000 5048350843
5 24 305 CHESTNUT HILL 199 BOYLESTON STREET
CHESTNUT HILL
MA 021670000 6172444848
5 6 12 CAMBRIDGE 44 BRATTLE STREET
CAMBRIDGE
MA 021380000 6178643720
5 24 24 WELLESLEY SQUARE 73 CENTRAL STREET
WELLESLEY
MA 021810000 6172356770
5 24 16 HOLYOKE MALL 50 HOLYOKE ST/E-272
HOLYOKE
MA 010400000 4135340951
5 24 5 BRAINTREE S. SHORE SHOPPING CTR.
BRAINTREE
MA 021840000 6178483280
5 6 332 FANEUIL HALL 111 FANEUIL HALL MKT. PL.
BOSTON
MA 021090000 6177420031
5 6 329 PRUDENTIAL CENTER 800 BOYLSTON STREET
BOSTON
MA 021160000 6174219097
5 6 288 NORTHSHORE MALL NORTHSHORE MALL RT. 20
PEABODY
MA 019600000 5085320064
5 6 108 CAMBRIDGESIDE 100 CAMBRIDGESIDE W-202
CAMBRIDGE
MA 021410000 6172252779
5 6 10 BURLINGTON BURLINGTON MALL
BURLINGTON
MA 018030000 6172723044
5 6 22 NEWBURY 18 NEWBURY STREET
BOSTON
MA 021160000 6172620763
5 24 318 NATICK MALL 1245 WORCHESTER RD-SP 1168
NATICK
MA 017600000 5086501119
8 71 720 WORCESTER 100 FRONT STREET SUITE 10
WORCESTER
MA 016080000 5087670295
8 71 733 OCEAN CITY 12741 OCEAN GATEWAY
OCEAN CITY
MD 218420000
1 8 31 WHITE FLINT WHITE FLINT MALL
KENSINGTON
MD 207950000 3017703233
1 7 132 HARBOR PLACE 200 EAST PRATT STREET
BALTIMORE
MD 212020000 4103320567
1 7 301 ANNAPOLIS MALL 1508 ANNAPOLIS MALL
ANNAPOLIS
MD 214010000 4105732053
1 8 137 MONTGOMERY MALL 7101 DEMOCRACY BLVD/1058
BETHESDA
MD 208170000 3013650771
1 7 138 TOWSON TOWN CENTER 11850 MARKET STREET
TOWSON
MD 212040000 4108231381
1 7 131 OWINGS MILLS 10300 MILL RUN CIRCLE
OWINGS MILLS
MD 211170000 4103630354
2 12 155 BRIARWOOD MALL 100 BRIARWOOD CIRCLE-E114
ANN ARBOR
MI 481080000 3137410270
2 12 154 FAIRLANE TOWN CENTER 18900 MICHIGAN AVE.J-122
DEARBORN
MI 481263901 3134412720
2 12 243 GROSSE POINTE FARMS 16822 KERCHEVAL AVE.
G P FARMS
MI 482300000 3138823380
2 12 246 WOODLAND MALL 3195 28TH STREET SE
GRAND RAPIDS
MI 495080000 6169429099
2 12 249 LAUREL PARK PLACE 37598 W 6 MILE ROAD
LIVONIA
MI 481520000 3135916000
2 12 242 TWELVE OAKS MALL 27434 NOVI ROAD
NOVI
MI 483770000 8103440066
2 12 41 SOMERSET MALL 2801 W. BIG BEAVER K252
TROY
MI 480843203 8106434457
8 73 713 BIRCH RUN 8825 MARKET PL DR, STE 420
BIRCH RUN
MI 484150000 5176244640
2 11 167 MALL OF AMERICA MALL OF AMERICA S-218
BLOOMINGTON
MN 554250000 6128549220
2 11 152 CONSERVATORY 800 NICOLLET MALL
MINNEAPOLIS
MN 554020000 6123384308
2 11 151 RIDGEDALE CENTER 12721 WAYZATA BLVD.
MINNETONKA
MN 553430000 6125939842
2 11 394 SOUTHDALE CENTER 170 SOUTHDALE CENTER
EDINA
MN 554350000 6129226868
2 11 335 ROSEDALE CENTER 206 ROSEDALE CENTER
ROSEVILLE
MN 551130000 6126383015
8 73 724 BRANSON 300 TANGER BLVD. STE 308
BRANSON
MO 656162188 4173392982
2 11 315 PLAZA FRONTENAC 38 PLAZA FRONTENAC
ST. LOUIS
MO 631310000 3149911956
2 11 403 ST. LOUIS GALLERIA 1418 ST. LOUIS GALLERIA
ST. LOUIS
MO 631170000 3148632014
8 73 718 OSAGE BEACH FACTORY OUT E HGWY 54,G11
OSAGE BEACH
MO 650650000 3143483191
2 11 125 ST LOUIS GALLERIA 1418 ST. LOUIS GALLERIA
ST. LOUIS
MO 631170000 3148632014
2 11 120 CLOSED-PLAZA FRONTENAC 38 PLAZA FRONTENAC
ST. LOUIS
MO 631310000 3149911956
2 11 124 COUNTRY CLUB PLAZA 4728 BROADWAY
KANSAS CITY
MO 641120000 8165616300
2 11 122 WEST COUNTY CENTER WEST COUNTY CENTER DES
PERES MO 631310000 3148220095
2 11 121 ST. LOUIS CENTER 515 NORTH 6TH STREET
ST. LOUIS
MO 631010000 3142319356
6 62 508 PLAZA FRONTENAC 1701 SOUTH LINDBURGH BLVD.
ST. LOUIS
MO 631310000 3144324001
3 15 406 NORTHPARK MALL 1200 E. COUNTY LINE RD-S
1116 RIDGELAND MS 391570000 6019579417
3 28 277 ASHEVILLE 800 BREVARD RM 850
ASHEVILLE
NC 288060000 7046658350
3 28 352 SOUTHPARK MALL 4400 SHARON ROAD
CHARLOTTE NC
282110000 7043647500
3 28 271 HANES MALL 3320 SILAS CREEK PKWY #756
WINSTON-SALEM NC
271030000 9106599744
3 28 359 FOUR SEASONS 210 4 SEASONS TWN CTR MALL
GREENSBORO NC
274040000 9102999118
3 28 328 CRABTREE VALLEY MALL 4325 GLENWOOD AVE
RALEIGH NC 276120000 9195719888
3 28 336 NORTHGATE MALL 1058 W CLUB BLVD.
DURHAM
NC 277010000 9194169526
2 11 364 OAKVIEW MALL 3001 SOUTH 144TH ST
OMAHA NE 681440000
2 11 123 PACIFIC PLACE 10341 PACIFIC STREET
OMAHA
NE 681140000 4023909002
5 6 13 PHEASANT LANE 310 DANIEL WEBSTER H'WAY
S. NASHUA
NH 030630000 6038910050
5 6 129 ROCKINGHAM PARK MALL 99 ROCKINGHAM BLVD
SALEM
NH 030790000 6038906062
1 26 59 MENLO PARK 307 MENLO PARK
EDISON
NJ 088300000 9084943866
1 26 20 RIVERSIDE SQUARE 143 RIVERSIDE SQUARE
HACKENSACK NJ
076010000 2014892590
1 26 369 PALISADES AVENUE 23-25-27 PALISADES AVE
ENGLEWOOD NJ 076310000
1 26 323 BRIDGEWATER COMMONS 400 COMMONS WAY
BRIDGEWATER NJ
088070000 9087070907
1 26 297 RIDGEWOOD 240 RIDGEWOOD AVE
RIDGEWOOD NJ 074510000 2016121117
1 26 313 SHORT HILLS MALL AT SHORT HILLS
SHORT HILLS
NJ 070780000 2014674290
1 4 105 CHERRY HILL MALL 839 CHERRY HILL MALL
CHERRY HILL
NJ 080020000 6096657450
6 61 507 THE GROVE AT SHREWSBURY 553 RT 53 - SP N-J
SHREWSBURY NJ
077020000 9085307266
1 4 366 PALMER SQUARE 17 PALMER SQUARE WEST
PRINCETON NJ
085400000
1 4 296 THE GROVE AT SHREWSBURY 559 RT. 35 N-10A
SHREWSBURY NJ
077020000 9082248803
1 4 128 FREEHOLD RACEWAY MALL 3710 RT. 9/C140-J
FREEHOLD
NJ 077280000 9084620073
1 4 118 OCEAN COUNTY MALL 1201 HOOPER AVE./RM. 451
TOMS RIVER NJ
087530000 9082403669
1 4 58 WOODBRIDGE CENTER 249 WOODBRIDGE CTR DR.
WOODBRIDGE NJ
070950000 9088551774
4 18 117 LINCOLN PLACE 130 LINCOLN AVENUE
SANTA FE
NM 875010000 5059840101
4 18 337 CORONADO CENTER 6600 MENAUL BLVD. NE #225
ALBUQUERQUE NM
871100000 5058817480
4 18 119 FORUM 3500 LAS VEGAS BLVD
LAS VEGAS
NV 891090000 7027940494
4 18 341 FASHION SHOW 3200 LAS VEGAS BLVD. SO.
LAS VEGAS
NV 891090000 7027348614
5 5 349 THE WESTCHESTER 125 WESTCHESTER AVE
WHITE PLAINS NY 106010000 9146448380
5 5 387 LARCHMONT (PALMER AVE) 1919 PALMER AVENUE
LARCHMONT NY
105380000 9148343637
5 5 416 THE WESTCHESTER 125 WESTCHESTER AVENUE
WHITE PLAINS NY
106014522
1 25 19 SOUTH STREET SEAPORT 25 FULTON STREET
NEW YORK
NY 100380000 2126085612
9 95 38 NYO SAMPLES 142 WEST 57TH STREET
NEW YORK
NY 100190000
5 5 57 NANUET MALL 75 W. ROUTE 59, SUITE 2032
NANUET
NY 109540000 9146230390
1 2 145 75TH & 3RD 1320 THIRD AVENUE
NEW YORK
NY 100210000 2128613392
8 71 734 NIAGARA FALLS 1900 MILITARY RD
NIAGARA FALLS NY
143040000
1 2 203 UPPER WEST SIDE 2015-17 BROADWAY(@ 69TH ST
NEW YORK
NY 100230000 2128737344
5 5 15 EASTCHESTER 696 WHITE PLAINS RD.
SCARSDALE NY
105830000 9147230500
5 3 338 CAROUSEL CENTER 320 HIAWATHA BLVD. WEST
SYRACUSE NY 132099501 3154664001
8 71 709 WOODBURY COMMONS ROUTE 32 C-3
CENTRAL VALLEY NY
109170000 9149284586
1 2 208 87TH & BROADWAY 2380 BROADWAY
NEW YORK
NY 100240000 2127213130
1 2 49 THIRD AVENUE (@ 50TH ST. 805 THIRD AVENUE
NEW YORK
NY 100220000 2123085333
1 25 309 WORLD FINANCIAL CTR 225 LIBERTY STREET
NEW YORK
NY 102810000 2129451991
1 25 207 MANHATTAN MALL @ 33RD ST 901 AVE OF AMERICAS NEW
YORK NY 100010000 2125643992
1 2 14 80TH & MADISON 1055 MADISON AVENUE
NEW YORK
NY 100280000 2129888930
1 25 200 FIFTH AVENUE 575 FIFTH AVENUE
NEW YORK
NY 100170000 2129223621
5 3 29 MANHASSET 1990 NORTHERN BLVD.
MANHASSET NY
110300000 5166271028
1 1 362 645 MADISON AVENUE 645 MADISON AVENUE
NEW YORK
NY 100220000
1 25 99 STATEN ISLAND MALL 2655 RICHMOND AVE.
STATEN ISLAND NY
103140000 7189837744
1 25 397 SOUTH STREET SEAPORT 25 FULTON STREET
NEW YORK
NY 100380000
5 3 140 WOODBURY COMMONS 8285 JERICHO T'PIKE
WOODBURY
NY 117970000 5163674142
8 71 723 RIVERHEAD TANGER DRIVE STE 512
RIVERHEAD NY
119010000 5163698800
5 3 201 CEDARHURST 445 CENTRAL AVENUE
CEDARHURST NY
115160000 5163740420
5 3 209 ROOSEVELT FIELD MALL RSVLT FIELD MALL/S-1208
GARDEN CITY NY
115300000 5167413700
5 3 205 WALDEN GALLERIA 2000 WALDEN AVENUE
BUFFALO
NY 142250000 7166846117
5 3 405 BRIDGEHAMPTON COMMONS
BRIDGEHAMPTON NY
119320000
5 3 396 WALT WHITMAN MALL 160-5 RTE
HUNTINGTON NY
117460000 5164234443
5 3 204 CROSSGATE MALL 120 WASHINGTON AVE. EXT.
ALBANY
NY 122030000 5184564433
5 3 393 EASTVIEW MALL 7979 PITTSFORD-VICTOR RD
VICTOR
NY 145640000 7164259650
2 14 321 TOWER CITY CENTER 230 HURON ROAD NW
CLEVELAND OH
441130000 2162411290
6 62 503 COLUMBUS CITY CENTER 315 COLUMBUS CITY DRIVE
COLUMBUS OH
432150000 6142286688
2 14 295 WORTHINGTON MALL 111 WORTHINGTON MALL
COLUMBUS OH
430850000 6148484557
6 62 502 KENWOOD TOWN CENTER 7875 MONTGOMERY ROAD
CINCINNATI
OH 452360000 5137940040
2 14 354 BEACHWOOD PLACE 26300 CEDAR ROAD, SPACE 152
BEACHWOOD OH
441220000
2 14 386 ERIEVIEW GALLERIA 1301 EAST 9TH STREET
CLEVELAND OH
441140000 2162416622
2 14 292 FAIRFIELD COMMONS 2727 FAIRFIELD COMMONS
BEAVER CREEK OH
454310000 5133200040
2 14 244 KENWOOD TOWN CENTRE 7875 MONTGOMERY ROAD
CINCINNATI
OH 452360000 5137917544
8 73 727 AURORA FARMS 549 S. CHILLICOTHE RD. STE
400 AURORA OH 442020000 2165625115
2 14 126 TOWER PLACE 28 WEST 4TH ST/B-33
CINCINNATI
OH 452020000 5136514590
2 14 245 COLUMBUS CITY CENTER 303 CITY CENTER DRIVE
COLUMBUS OH
432150000 6142213335
2 14 248 WESTGATE MALL 3190 WESTGATE MALL
FAIRVIEW PK
OH 441260000 2163333351
8 73 712 OHIO FACTORY SHOPS 8000 FACTORY SHOPS BLVD.
JEFFERSONVILLE
OH 431280000 6149482100
3 17 262 OKLAHOMA CITY 50 PENN PLACE
OKLAHOMA CITY
OK 731180000 4058433557
3 17 263 UTICA SQUARE 1948 UTICA SQUARE
TULSA
OK 741140000 9187445073
3 17 346 WOODLAND HILLS 7021 S. MEMORIAL DR. -S 158
TULSA
OK 741330000
4 30 196 PIONEER PLACE 700 SW 5TH AVENUE
PORTLAND
OR 972040000 5032220125
4 30 388 WASHINGTON SQ SHOPPING CT 9585 WEST WASHINGTON SQ
PORTLAND
OR 972230000
8 71 735 THE CROSSINGS 285 CROSSINGS FACTORY
TANNERSVILLE
PA 183720000 7176889605
8 72 706 MILLSTREAM 201 OUTLET DRIVE
LANCASTER
PA 176020000 7173932074
2 9 44 KING-OF-PRUSSIA PLAZA 432 GODDARD BLVD.
KING-OF-PRUSSIA
PA 194060000 2153370143
8 71 700 FRANKLIN MILLS 1556 FRANKLIN MILLS CI
PHILADELPHIA
PA 191540000 2156379410
2 9 55 MT. LEBANON 1500 WASHINGTON ROAD
MT. LEBANON
PA 152280000 4125618753
2 9 46 OXFORD CENTER 301 GRANT STREET
PITTSBURGH
PA 152190000 4122614772
2 9 51 ROSS PARK MALL 1000 ROSS PARK MALL DR.
PITTSBURGH
PA 152370000 4123640170
2 9 52 WALNUT STREET 1713 WALNUT STREET
PHILADELPHIA
PA 191030000 2159779336
2 9 400 KING-OF-PRUSSIA PLAZA 160 GULPH MILLS RD
KING OF PRUSSIA
PA 194060000 6103540770
2 9 56 GLEN EAGLE SQUARE 539 WILMINGTON-W. US202
GLEN MILLS
PA 193420000 2155583660
2 9 361 WILLOW GROVE PARK 2500 MORELAND ROAD
WILLOW GROVE
PA 190900000
2 9 348 SHADYSIDE 5407 WALNUT STREET
PITTSBURGH
PA 152320000
8 73 719 GROVE CITY I-79 AND RT 208, SUITE 350
GROVE CITY
PA 161270000 4127485101
2 9 43 ARDMORE 23 PARKING PLAZA
ARDMORE
PA 190030000 2156424293
5 24 6 WARWICK 117 WARWICK MALL
WARWICK
RI 028860000 4017379220
3 28 382 HAYWOOD MALL 700 HAYWOOD ROAD S1058
GREENVILLE
SC 296070000 8036273857
3 28 351 MALL AT SHELTER COVE 24 SHELTER COVE LANE
HILTON HEAD
SC 299280000 8038422388
8 72 736 MYRTLE BEACH
MYRTLE BEACH
SC
3 28 325 KING STREET (CHARLESTON) 265-267 KING STREET
CHARLESTON
SC 294010000 8037228231
3 13 380 WEST TOWN MALL 7600 KINGSTON PIKE-S 1582
KNOXVILLE
TN 379190000
3 13 279 COOL SPRINGS GALLERIA 1800 GALLERIA BLVD/S. 1530
FRANKLIN
TN 370640000 6147717232
3 13 384 THE MALL @ GREEN HILLS 2126 ABBOT MARTIN ROAD
NASHVILLE
TN 372150000
3 13 278 HAMILTON PLACE MALL 2100 HAMILTON PL BLVD
CHATTANOOGA
TN 374210000 6158947694
3 13 261 BELLEVUE CENTER 7620 US HWY 70 SO.
NASHVILLE
TN 372210000 6156467692
3 13 260 SADDLECREEK 7614 W. FARMINGTON BLVD
GERMANTOWN
TN 381380000 9017567996
3 17 320 NORTH PARK CENTER 425 NORTH PARK CENTER
DALLAS
TX 752250000 2146915544
3 17 283 DALLAS GALLERIA 13350 DALLAS PARKWAY
DALLAS
TX 752400000 2143864548
8 72 707 SAN MARCOS 3939 INTERSTATE HIGHWAY 35
SAN MARCOS
TX 786660000 5127546754
8 72 726 GAINESVILLE 4321 I-H 35 NORTH, SPACE
600 GAINESVILLE TX 762400000
8176886650
3 17 86 NORTH STAR MALL 7400 SAN PEDRO - SUITE 620
SAN ANTONIO
TX 782160000 2103664742
3 17 350 COLLIN CREEK 811 NORTH CENTRAL EXPWY
PLANO
TX 750758815
3 17 344 ARBORETUM MARKET 9722 GREAT HILLS TRAIL
AUSTIN
TX 787590000 5123458307
3 17 356 HIGHLAND MALL 6001 AIRPORT ROAD
AUSTIN
TX 787520000
3 17 357 HULEN MALL 4800 SOUTH HULEN ST.-S 130
FORT WORTH
TX 761320000
3 29 83 TOWN & COUNTRY 800 WEST BELT
HOUSTON
TX 770240000 7139731196
3 29 368 BAYBROOK MALL 1029 BAYBROOK MALL
FRIENDSWOOD
TX 775460000 7132808331
3 29 281 HOUSTON GALLERIA 5085 WESTHEIMER SUITE 2880
HOUSTON TX
770560000 7136273722
3 29 266 WILLOWBROOK MALL 7925 FM 1960 W PH 1096
WILWBR HOUSTON TX 770700000
7134696792
3 29 300 RIVER OAKS 1992 WEST GRAY SP609
HOUSTON
TX 770190000 7139427345
3 17 417 PRESTON PARK VILLAGE 1900 PRESTON RD
PLANO
TX 75093000
3 17 390 UNIVERSITY VILLAGE 1620 S UNIVERSITY DRIVE
FORT WORTH
TX 761070000
3 17 385 HIGHLAND PARK VILLAGE 47 HIGHLAND PARK VILLAGE
DALLAS
TX 752050000 2145224700
3 17 411 COLLECTION @ BWY & SUNSET 7959 BROADWAY
SAN ANTONIO
TX 782090000
4 31 115 TROLLEY SQUARE 392 TROLLEY SQUARE
SALT LAKE CITY
UT 841020000 8013221061
4 31 340 FASHION PLACE 6191 SOUTH STATE #201
MURRAY
UT 841070000 8012611071
1 8 381 FASHION SQUARE 1554 EAST RIO ROAD
CHARLOTTESVILLE
VA 229010000
1 8 130 REGENCY SQUARE 1404 PARHAM ROAD
RICHMOND
VA 232290000 8047412797
1 8 159 SPRINGFIELD MALL 6453 SPRINGFIELD MALL
SPRINGFIELD
VA 221500000 7039719108
1 8 133 CHESTERFIELD TOWN CENTER 11500 MIDLOTHIAN T'PIKE
RICHMOND
VA 232350000 8047941780
1 8 407 PENTAGON CITY 1100 SOUTH HAYES
ARLINGTON
VA 222020000 7034153170
1 7 312 TYSONS GALLERIA 2001 INTERNATIONAL DRIVE
MCLEAN
VA 221020000 7039179854
8 72 705 POTOMAC MILLS 2700 POTOMAC MILS CIR STE
933 PRINCE WILLIAM VA 221920000 7034915308
1 7 30 TYSON'S CORNER TYSON'S CORNER CENTER
MCLEAN
VA 221020000 7038930777
1 8 136 RESTON TOWN CTR 11850 MARKET STREET
RESTON
VA 220900000 7037874602
5 6 367 CHURCH ST. MARKET PLACE ONE CHURCH STREET
BURLINGTON
VT 054020000 8028604746
4 30 413 SOUTHCENTER MALL 633 SOUTHCENTER
TUKWILA
WA 981880000
4 30 285 BELLEVUE SQUARE BELLEVUE SQUARE # 1001
BELLEVUE
WA 980040000 2064553470
4 30 194 CITY CENTRE 1420 FIFTH AVENUE
SEATTLE
WA 981010000 2066234818
8 74 738 SUPERMALL 1101 SUPERMALL WAY
SEATTLE
WA 980010000
2 27 401 MAYFAIR MALL 2500 N. MAYFAIR ROAD-SP 0-
28 WAUWATOSA WI 532260000 4147749222
ANNEX III
UCC FILINGS
See Attached.
UCC Filing Jurisdictions
AnnTylor, Inc.
Alabama Secretary of State
Arizona Secretary of State
Arkansas Secretary of State
Office of the Clerk of the Circuit Court and
Ex Officio Recorder of Pulaski County
California Secretary of State
Colorado Secretary of State
Connecticut Secretary of State
Delaware Secretary of State
District of
Columbia Recorder of Deeds of the District of Columbia
Florida Secretary of State
Georgia Clerk of the Superior Court of Fulton County
Hawaii Registrar of Conveyances
Illinois Secretary of State
Indiana Secretary of State
Kentucky Secretary of State of the Commonwealth of
Kentucky
Office of the County Clerk of Jefferson
County
Louisiana Recorder of Mortgages of Orleans Parish
Maryland Maryland State Department of Assessments and
Taxation
Massachusetts Secretary of Commonwealth
Michigan Secretary of State
Minnesota Secretary of State
Mississippi Secretary of State
Chancery Clerk of Madison County
Missouri Secretary of State
Nebraska Secretary of State
Nevada Secretary of State
New Hampshire Secretary of State
New Jersey Secretary of State
New Mexico Secretary of State
New York Department of State
North Carolina Secretary of State
Ohio Secretary of State
Oklahoma County Clerk of Oklahoma County
Oregon Secretary of State
Pennsulvania Secretary of the Commonwealth
Rhode Island Secretary of State
South Carolina Secretary of State
Tennessee Secretary of State
Texas Secretary of State
Utah Division of Corporations and Commercial Code
Vermont Secretary of State
Town Clerk of Burlington
Virginia State Corporation Commission
Washington Department of Licensing
Wisconsin Secretary of State
EXHIBIT 4.01(a)(iii)(B)
FORM OF TRADEMARK SECURITY AGREEMENT
THIS TRADEMARK SECURITY AGREEMENT (as such agreement may be amended,
supplemented or otherwise modified from time to time, this "Trademark Security
Agreement") made as of the 29th day of September, 1995, by ANNTAYLOR, INC., a
corporation having its principal place of business located at 142 West 57th
Street, New York, New York 10019 (the "Borrower") in favor of BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION, with an office located at 1455 Market
Street, San Francisco, California 94103, in its capacity as the Agent under the
"Credit Agreement" (as defined below) (the "Agent").
R E C I T A L S:
The Borrower, the Agent, BA Securities, Inc., as Arranger, Bank of America
National Trust and Savings Association and Fleet Bank, National Association as
Co-Agents, and certain financial institutions currently and in the future to be
parties to the Credit Agreement (as defined below) (such financial institutions
being collectively, the "Lenders") have entered into a certain Amended and
Restated Credit Agreement dated as of September 29, 1995 (as such agreement may
be amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), which provides (i) for the Lenders to make Loans to the Borrower
and for the Issuing Banks to issue the Letters of Credit and (ii) that as a
condition precedent to the making of the Loans and the issuance of the Letters
of Credit, the Borrower enter into this Trademark Security Agreement to secure
the Obligations.
NOW, THEREFORE, in consideration of the above premises and in order to
induce the Lenders to make the Loans and each Issuing Bank to issue the Letters
of Credit under the Credit Agreement, the Borrower hereby agrees with the Agent
for its benefit, for the benefit of the Lenders and the Issuing Banks as
follows:
1. Defined Terms.
(a) Unless otherwise defined herein, the capitalized terms used herein
which are defined in the Credit Agreement shall have the meanings specified in
the Credit Agreement.
(b) The words "hereof," "herein" and "hereunder" and words of like import
when used in this Trademark Security Agreement shall refer to this Trademark
Security Agreement as a whole and not to any particular provision of this
Trademark Security Agreement, and section references are to sections in this
Trademark Security Agreement unless otherwise specified.
(c) All terms defined in this Trademark Security Agreement in the singular
shall have comparable meanings when used in the plural, and vice versa, unless
otherwise specified.
2. Security Interest in Trademarks.
To secure the complete and timely payment, performance and satisfaction of
the Obligations, the Borrower hereby grants to the Agent for the benefit of the
Agent, the Lenders and the Issuing Banks a security interest in, with power of
sale to the extent permitted by applicable law, all of the Borrower's now-owned
or existing and filed and hereafter acquired or arising and filed:
(a) trademarks, trademark registrations, trade names and trademark
applications for any of the foregoing in the United States Patent and Trademark
Office or in any other office or with any other official anywhere in the world
or which are used in the United States or any state, territory or possession
thereof, or in any other place, nation or jurisdiction anywhere in the world,
including, without limitation, the trademarks, trademark registrations, service
marks, service mark registrations and applications listed on Annex I, attached
hereto and made a part hereof, and (i) all renewals thereof, (ii) all income,
royalties, damages and payments now and hereafter due and/or payable with
respect thereto, including, without limitation, payments under all licenses
entered into in connection therewith and damages and payments for past or future
infringements thereof, (iii) the right to sue for past, present and future
infringements thereof, and (iv) all rights corresponding thereto throughout the
world (all of the foregoing trademarks, and trademark registrations, trade
names, service marks, service mark registration and applications, together with
the items described in clauses (i) through (iv) in this subparagraph (a), are
sometimes hereinafter individually and/or collectively referred to as the
"Trademarks");
(b) license agreements with any other party in connection with any
Trademarks or such other party's trademarks or trademark applications, whether
the Borrower is a licensor or licensee under any such license agreement,
including, but not limited to, the license agreements listed on Annex II
attached hereto and made a part hereof, and the right to prepare for sale, sell
and advertise for sale, all of the inventory now or hereafter owned by the
Borrower and now or hereafter covered by such license agreements (all of the
foregoing being hereinafter referred to collectively as the "Licenses").
(c) the goodwill of the Borrower's business connected with and symbolized
by the Trademarks;
The Trademarks, Licenses and the goodwill referred to above are hereinafter
collectively called the "Collateral".
3. Restrictions on Future Agreements.
The Borrower agrees that until all the Obligations shall have been
satisfied in full and the Credit Agreement shall have been terminated, the
Borrower will not, without the Agent's prior written consent, abandon any
Trademark, except as would not have a material adverse effect on the business of
the Borrower, or enter into any agreement, including, without limitation, any
license agreement (other than as necessary to maintain or protect any
Trademark), which is inconsistent with the Borrower's obligations under this
Trademark Security Agreement, and the Borrower further agrees that it will not
take any action, or permit any action to be taken by any other Persons to the
extent that such Persons are subject to its control, including licensees, or
fail to take any action, which would affect the validity, priority, perfection
or enforcement of the rights transferred to the Agent under this Trademark
Security Agreement, and any such agreement or action if it shall take place
shall be null and void and of no effect whatsoever. Nothing in this Section 3
shall be deemed to prevent the Borrower from engaging in transactions permitted
under Section 8.02(a)(v) of the Credit Agreement.
4. New Trademarks.
The Borrower represents and warrants that the Trademarks and Licenses
listed on Annexes I and II constitute all of the significant trademarks,
applications, trade names, service marks, service mark registrations and
trademark registrations now owned and license agreements entered into by the
Borrower. If, before the Obligations shall have been satisfied in full, the
commitments of the Lenders to extend credit under the Credit Agreement shall
have been terminated and the Credit Agreement shall have been terminated, the
Borrower shall, after the date hereof, (i) obtain rights to any new trademarks,
trademark registrations, trademark applications, service marks, service mark
registrations, or trade names, (ii) become entitled to the benefit of any
trademarks, trademark registrations, trademark applications, trade names,
service marks, service mark registrations, trademark licenses or trademark
license renewals or (iii) enter into any new trademark license agreements, the
provisions of paragraph 2 above shall automatically apply thereto, and the
Borrower shall give to the Agent prompt written notice thereof. The Borrower
hereby authorizes the Agent to modify this Trademark Security Agreement by
amending Annex I or II to include any future trademarks, trademark applications,
trade names, service marks, service mark registrations, trademark registrations
or license agreements that are the Trademark or the Licenses, under paragraph 2
above or under this paragraph 4.
5. Additional Representations and Warranties.
The Borrower hereby represents, warrants, covenants and agrees that:
(a) Except as otherwise provided or permitted herein or in the Credit
Agreement, it is and will continue to be the owner of all its right, title and
interest in the Collateral so long as the Trademarks and Licenses shall continue
in force. The Trademarks and Licenses are and shall continue to be free from
any Lien in favor of a Person except for those Liens permitted by Section 8.02
of the Credit Agreement.
(b) It has the full right and power to grant the security interest in the
Collateral made hereby.
(c) It has made no previous assignment, transfer or agreements in conflict
herewith or constituting a present or future assignment, transfer, or
encumbrance on any of the Collateral.
(d) So long as any Obligations remain outstanding under the Credit
Agreement, the commitments of the Lenders to extend credit under the Credit
Agreement have not been terminated and the Credit Agreement has not terminated,
it will not execute, and there will not be on file in any public office, any
financing statement or other document or instrument covering the Collateral
except as otherwise contemplated or permitted hereby or by the Credit Agreement
and the other Loan Documents.
(e) Subject to any limitation stated therein or in connection therewith,
all information furnished to the Agent concerning the Collateral and proceeds
thereof, for the purpose of obtaining credit or an extension of credit, is, or
will be at the time the same is furnished, accurate and correct in all material
respects.
(f) To the best of the Borrower's knowledge and belief following diligent
inquiry, no infringement or unauthorized use presently is being made of any of
the Trademarks or Licenses which has or may reasonably be expected to have,
alone or in the aggregate, a Material Adverse Effect. The Borrower has advised
the Agent of (i) the existence of restrictions on the use of the Trademark and
Licenses as may be contained in the Borrower's franchise agreements and license
agreements relating to the use of the Trademarks and Licenses and (ii) its
trademark monitoring and enforcement practice.
6. Royalties; Term.
The Borrower hereby agrees that any rights granted hereunder to the Agent
for the benefit of the Agent, the Lenders and the Issuing Banks with respect all
the Collateral as described above shall be worldwide and without any liability
for royalties or other related charges from the Agent to the Borrower. The term
of the security interest granted herein shall extend until the earlier of (i)
the expiration or abandonment of each of the Trademarks and Licenses subject to
this Trademark Security Agreement, or (ii) the date on which all the Obligations
have been paid in full, the commitments of the Lenders to extend credit under
the Credit Agreement have been terminated and the Credit Agreement has been
terminated.
7. The Agent's Right to Inspect.
The Agent and the Lenders shall have the right, at any time and from time
to time, to inspect the Borrower's premises and to examine the Borrower's books,
records and operations, including, without limitation, the Borrower's
merchandise quality control processes upon reasonable notice and at such
reasonable times and as often as may be reasonably requested. The Borrower
agrees (i) not to sell or assign its interest in, or grant any license under,
the Collateral without the prior written consent of the Agent except as
otherwise permitted under Sections 8.02 and 8.03 of the Credit Agreement; and
(ii) to maintain the quality of any and all merchandise in connection with which
the Trademarks are used, consistent with or better than the quality of said
merchandise as of the date hereof.
8. Termination of Security Interest.
This Trademark Security Agreement is made for collateral purposes only.
Upon payment in full of the Obligations and upon termination of the Credit
Agreement, the Agent shall, at the Borrower's sole cost and expense, execute and
deliver to the Borrower all termination statements or other instruments as may
be necessary or proper to re-vest in the Borrower (without recourse to or
warranty by the Agent) full title to the Collateral granted hereby, subject to
any disposition thereof which may have been made by the Agent pursuant hereto or
pursuant to the Credit Agreement.
9. Duties of the Borrower.
The Borrower shall have the duty (i) to prosecute diligently any trademark
application that is part of the Trademarks pending as of the date hereof or
thereafter until the obligations shall have been paid in full, (ii) to make
applications on trademarks, as appropriate, and (iii) to preserve and maintain
all rights in trademark applications, trademarks, trademark registrations,
service marks, and service mark registrations, that are part of the Trademarks
except, in the case of (i) or (iii), where the failure to do so would not have
or be reasonably expected to have a Material Adverse Effect. Any expenses
incurred in connection with such applications shall be borne by the Borrower.
The Borrower agrees to retain an experienced trademark attorney for the filing
and prosecution of all such applications and other proceedings. The Borrower
shall not abandon any right to file a trademark application in the United States
or any pending trademark application in any country without the prior written
consent of the Agent except as would not have or be reasonably expected to have
a Material Adverse Effect. If the Borrower fails to comply with any of the
foregoing duties, the Agent shall have the right (but shall not be obligated) to
do so in the Borrower's name to the extent permitted by law, but at the
Borrower's expense, and the Borrower hereby agrees to reimburse the Agent in
full for all expenses, including the fees and disbursements of counsel incurred
by the Agent in protecting, defending and maintaining the Collateral. In the
event that the Borrower shall fail to pay when due any fees required to be paid
by it hereunder, or shall fail to discharge any Lien prohibited hereby, or shall
fail to comply with any other duty hereunder, the Agent may, but shall not be
required to, pay, satisfy, discharge or bond the same for the account of the
Borrower, and all monies so paid out shall be Obligations of the Borrower
repayable on demand, together with interest at the fluctuating rate applicable
to Base Rate Loans under the Credit Agreement.
10. The Agent's Right to Sue.
From and after the occurrence and during continuance of an Event of
Default, the Agent shall have the right, but shall in no way be obligated, to
bring suit in its own name for its own benefit and for the benefit of the
Lenders and the Issuing Banks to enforce the Trademarks and Licenses, and if the
Agent shall commence any such suit, the Borrower shall, at the request of the
Agent, do any and all lawful acts and execute any and all proper documents
required by the Agent in aid of such enforcement. The Borrower shall, upon
demand, promptly reimburse the Agent for all costs and expenses incurred by
Agent pursuant to the terms of the Credit Agreement.
11. Waivers.
No course of dealing among the Borrower, the Agent, the Lenders, the
Issuing Banks or any of them, and no failure to exercise, nor any delay in
exercising, on the part of the Agent, the Lenders or the Issuing Banks, any
right, power or privilege hereunder or under the Credit Agreement shall operate
as a waiver thereof; nor shall any single or partial exercise of any right,
power or privilege hereunder or thereunder preclude any other or further
exercise thereof the exercise of any other right, power or privilege.
12. Severability.
The provisions of this Trademark Security Agreement are severable, and if
any clause or provision shall be held invalid and unenforceable in whole or in
part in any jurisdiction, then such invalidity or unenforceability shall affect
only such clause or provision or part thereof, in such jurisdiction, and shall
not in an manner affect such clause or provision in any other jurisdiction, or
any other clause or provision of this Trademark Security Agreement in any
jurisdiction.
13. Modification.
This Trademark Security Agreement cannot be altered, amended or modified in
any way, except as specifically provided in paragraph 4 hereof or by a writing
signed by the parties hereto.
14. Cumulative Remedies; Power of Attorney; Effect On Other Agreements.
All of the Agent's rights and remedies with respect to the Collateral,
whether established hereby, by the Credit Agreement, by the Collateral
Documents, by any other agreements or by law shall be cumulative and may be
exercised singularly or concurrently. Upon the occurrence and during the
continuance of an Event of Default and the giving by the Agent of written notice
to the Borrower of the Agent's intention to enforce its right and claims against
the Borrower, the Borrower hereby authorizes the Agent to make, constitute and
appoint any officer or agent of the Agent as the Agent may select, in its sole
discretion, as the Borrower's true and lawful attorney-in-fact, with power (but
not the obligation) to (i) endorse the Borrower's name on all applications,
documents, papers and instruments necessary or desirable for the Agent in the
use of the Collateral, or (ii) take any other actions with respect to the
Collateral as the Agent deems in the best interest of the Agent, the Lenders and
the Issuing Banks or (iii) grant or issue any exclusive or non-exclusive license
under the Collateral to anyone, or (iv) assign, pledge, convey or otherwise
transfer title in or dispose of the Collateral to anyone free and clear of any
encumbrance upon title thereof (other than any encumbrance created hereby). The
Borrower hereby ratifies all that such attorney shall lawfully do or cause to be
done by virtue hereof. This power of attorney shall be irrevocable until the
Obligations have been paid in full, the commitments of the Lenders to extend
credit under the Credit Agreement have been terminated and the Credit Agreement
has been terminated. The Borrower acknowledges and agrees that this Trademark
Security Agreement is not intended to limit or restrict in any way the rights
and remedies of the Agent and the Lender under the Loan Documents but rather is
intended to facilitate the exercise of such rights and remedies. The Agent, the
Lenders and the Issuing Banks shall have, in addition to all other rights and
remedies given it by the terms of this Trademark Security Agreement, all rights
and remedies allowed by law and the rights and remedies of a secured party under
the Uniform Commercial Code as enacted in any jurisdiction in which the
Collateral may be located. Recourse to security will not be required at any
time.
15. Binding Effect; Benefits.
This Trademark Security Agreement shall be binding upon the Borrower and
its successors and assigns, and shall inure to the benefit of the Agent, the
Lenders and the Issuing Banks. The Borrower's successors and assigns shall
include, without limitation, a receiver, trustee or debtor-in-possession of or
for the Borrower.
16. Notices.
Any notices and other communications hereunder shall be given in the manner
and to the addresses set forth in the Credit Agreement.
17. Choice of Law.
This Trademark Security Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
18. Consent to Jurisdiction and Service of Process; Waiver of Jury Trial.
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST THE BORROWER WITH RESPECT TO THIS
TRADEMARK SECURITY AGREEMENT OR ANY NOTE OR ANY OTHER LOAN DOCUMENT MAY BE
BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE OF
NEW YORK, AND BY EXECUTION AND DELIVERY OF THIS TRADEMARK SECURITY AGREEMENT,
THE BORROWER ACCEPTS, FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES,
GENERALLY AND UNCONDITIONALLY, THE NONEXCLUSIVE JURISDICTION OF THE AFORESAID
COURTS, AND IRREVOCABLY AGREES TO BE BOUND BY ANY FINAL JUDGMENT RENDERED
THEREBY IN CONNECTION WITH THIS TRADEMARK SECURITY AGREEMENT OR ANY NOTE OR ANY
OF THE OTHER LOAN DOCUMENTS FROM WHICH NO APPEAL HAS BEEN TAKEN OR IS AVAILABLE.
THE BORROWER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OF ANY OF THE
AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES
THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO ITS NOTICE ADDRESS
SPECIFIED ON THE FIRST PAGE HEREOF, SUCH SERVICE TO BECOME EFFECTIVE TEN (10)
DAYS AFTER SUCH MAILING. EACH OF BORROWER, THE AGENT AND THE LENDERS
IRREVOCABLY WAIVES (A) TRIAL BY JURY IN ANY ACTION OR PROCEEDING WITH RESPECT TO
THIS TRADEMARK SECURITY AGREEMENT OR ANY OTHER LOAN DOCUMENT, AND (B) ANY
OBJECTION (INCLUDING WITHOUT LIMITATION, ANY OBJECTION OF THE LAYING OF VENUE OR
BASED ON THE GROUNDS OF FORUM NON CONVENIENS) WHICH IT MAY NOW OR HEREAFTER HAVE
TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING WITH RESPECT TO THIS TRADEMARK
SECURITY AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY JURISDICTION SET FORTH
ABOVE. NOTHING HEREIN SHALL AFFECT THE RIGHT TO SERVE PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT OF ANY LENDER TO BRING
PROCEEDINGS AGAINST BORROWER IN THE COURTS OF ANY OTHER JURISDICTION.
19. Waiver of Notice, Hearing and Bond.
THE BORROWER WAIVES ALL RIGHTS TO NOTICE AND HEARING OF ANY
KIND PRIOR TO THE EXERCISE BY THE AGENT OR THE LENDERS OF ITS
RIGHTS, FROM AND AFTER THE OCCURRENCE OF AN EVENT OF DEFAULT, TO
REPOSSESS THE COLLATERAL WITH JUDICIAL PROCESS OR TO REPLEVY,
ATTACH OR LEVY UPON THE COLLATERAL. THE BORROWER WAIVES THE
POSTING OF ANY BOND OTHERWISE REQUIRED OF THE AGENT OR THE
LENDERS IN CONNECTION WITH THE JUDICIAL PROCESS OR PROCEEDING TO
OBTAIN POSSESSION OF, REPLEVY, ATTACH, OR LEVY UPON THE
COLLATERAL TO ENFORCE ANY JUDGMENT OR OTHER COURT ORDER ENTERED
IN FAVOR OF THE AGENT OR THE LENDER OR TO ENFORCE BY SPECIFIC
PERFORMANCE, TEMPORARY RESTRAINING ORDER PRELIMINARY OR PERMANENT
INJUNCTION, THIS TRADEMARK SECURITY AGREEMENT.
20. Advice of Counsel.
THE BORROWER REPRESENTS TO THE AGENT THAT IT HAS DISCUSSED
THIS TRADEMARK SECURITY AGREEMENT WITH ITS ATTORNEYS.
21. Governing Provisions.
To the extent any provisions of this Trademark Security
Agreement are inconsistent with any provisions in the Borrower
Security Agreement, the provisions of this Trademark Security
Agreement shall govern.
22. Section Titles.
The section titles herein are for convenience and reference
only and shall not affect in any way the-interpretation of any of
the provisions hereof.
IN WITNESS WHEREOF, the Borrower has duly executed this
Agreement as of the day first above written.
ANNTAYLOR, INC.
By: _
Title: _
Attest:
_________________________
Agreed and accepted to as of
the date first above written:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Agent
By: _
Title: _
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
The foregoing Trademark Security Agreement was
executed and acknowledged before me this _____ day of __________, 1995, by
_________________________ personally known to me to be the
_________________________ of AnnTaylor, Inc., a Delaware corporation, on behalf
of such corporation.
(SEAL)
_________________________
Notary Public
________ County, ________
My Commission Expires:
_________________________
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
The foregoing Trademark Security Agreement was
executed and acknowledged before me this _____ day of __________, 1995, by
_________________________ personally known to me to be the
_________________________ of Bank of America National Trust and Savings
Association, a national banking association, on behalf of such corporation.
(SEAL)
_________________________
Notary Public
________ County, ________
My Commission Expires:
_________________________
Annex I
to
Trademark Security Agreement
_______________
Dated as of September 29, 1995
Trademarks and Trademark Applications
U.S. Registered Trademarks:
Trademark Registration No. Issue Date Expiration/Renewal
Date
ANNTAYLOR. (Stylized) 1,770,157 05/11/93 05/11/03
ANN TAYLOR 1,444,585 06/23/87 06/23/07
ANN TAYLOR 1,251,717 09/20/83 09/20/03
ANNTAYLOR. 1,789,470 08/24/93 08/24/03
(Stylized)
ANNTAYLOR. 1,832,503 04/19/94 04/19/04
(Stylized)
AnnTaylor. 1,854,221 09/13/94 09/13/04
(Stylized)
ANNTAYLOR. 1,881,093 02/28/95 02/28/05
DESTINATION 1,875,773 01/24/95 01/24/05
(not stylized)
DESTINATION ANNTAYLOR 1,804,908 11/16/93 11/16/03
(not stylized)
destination ANNTAYLOR. 1,811,236 12/14/93 12/14/03
(stylized)
AT denim (logo design) 1,817,468 01/18/94 01/18/04
AT DENIM. 1,826,976 03/15/94 03/15/04
ANNTAYLOR. 1,782,601 07/20/93 07/20/03
ANNTAYLOR. 1,832,187 04/19/94 04/19/04
(stylized)
U.S. Trademark Applications:
Trademark Serial No. File Date
AT ANNTAYLOR. ORIGINALS - CLASSIC 74/304,148 08/12/92
STYLE (and design)
AT ANNTAYLOR. ORIGINALS - CLASSIC 74/304/144 8/12/92
STYLE (and design)
DESTINATION 74/493,760 02/23/94
ACTION 74/601,938 11/22/94
ACTION 74/601,976 11/22/94
ACTION (and Design) 74/601,941 11/22/94
ACTION (and Design) 74/601,937 11/22/94
ACTION (and Design) 74/601,939 11/22/94
ANNTAYLOR. LOFT (stylized) 74/585,175 10/13/94
THE SHOE LOFT (stylized) 74/654,336 03/31/95
Foreign Registered Trademarks:
Trademark and Country Registration No. Issue Date
Expiration/Renewal Date
Ann Taylor/Canada TMA381,405 03/20/86 03/20/01
Ann Taylor1/Japan 1973145 07/23/87 07/23/97
Ann Taylor/Japan 2322093 07/31/91 07/31/01
Ann Taylor1/Japan 2322094 07/31/91 07/31/01
Ann Taylor./Japan 2461709 09/30/92 09/30/02
Ann Taylor1/Japan 2461710 09/30/92 09/30/02
Ann Taylor./Japan 2451513 08/31/92 08/31/02
Ann Taylor1/Japan 2451514 08/31/92 08/31/02
Ann Taylor./Japan 2389850 03/31/92 03/31/02
Ann Taylor1/Japan 2389851 03/31/92 03/31/02
AnnTaylor./Brazil 817167129 11/15/94 11/15/04
ATDENIM./Brazil 817401985 01/24/95 01/23/05
ATDENIM/Canada 08/18/95
AnnTaylor/Hong Kong 01800/1995 06/25/93 06/25/14
AnnTaylor 2700331 11/30/94 11/30/04
(English)/Japan
AmmTaylor 2700332 11/30/94 11/30/04
(Katakana)/Japan
AnnTaylor 316507 06/30/95 06/30/05
(Korean)/Korea
ANN TAYLOR/Taiwan 521793 05/01/91 04/30/01
Foreign Trademark Applications:
Trademark and Country Serial No. File Date
Ann Taylor/Taiwan2 79/48075 11/05/90
AnnTaylor/Japan 15005/1989 02/10/89
AnnTaylor1/Japan 15006/1989 02/10/89
Ann Taylor/Hong Kong3 9156/90 11/13/90
AnnTaylor./Brazil4 817167129 04/01/93
1 In Katakana.
2 Updating status on application.
3 Application for "Ann Taylor" in Hong Kong is being withdrawn and
refiled pursuant to the requirements of the Hong Kong trademark
authority.
4 Application for "Ann Taylor" in Brazil is being amended to show
mark as "AnnTaylor.". If it cannot be amended, it will be
withdrawn and refiled.
Annex II
to
Trademark Security Agreement
Dated as of September 29, 1995
License Agreements
None.
EXHIBIT 4.01 (a)(iv)
FORM OF ATSC GUARANTY
THIS AMENDED AND RESTATED GUARANTY (as such agreement may be amended,
supplemented or otherwise modified from time to time, this "Guaranty") dated as
of September 29, 1995 is made by ANNTAYLOR STORES CORPORATION, a Delaware
corporation, with its principal place of business at 142 West 57th Street, New
York, New York 10019 (the "Guarantor"), in favor of BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION, with an office at 1455 Market Street, San
Francisco, California 94103, in its capacity as Agent under the "Credit
Agreement" (as defined below) (the "Agent").
R E C I T A L S:
ANNTAYLOR, INC., a Subsidiary of the Guarantor, (the "Borrower"), the
Agent, BA Securities, Inc., as Arranger, Bank of America National Trust and
Savings Association and Fleet Bank, National Association, as Co-Agents, and
certain financial institutions currently and in the future parties to the Credit
Agreement (such financial institutions being collectively, the "Lenders") have
entered into a certain Amended and Restated Credit Agreement dated as of
September 29, 1995 (as such agreement may be amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"; the capitalized terms not
otherwise defined herein are being used herein as defined in the Credit
Agreement), which provides for the Lenders to make Loans to the Borrower and for
the Issuing Banks to issue Letters of Credit. The Credit Agreement amends and
restates the existing credit agreement, dated as of July 29, 1994, as amended,
among the parties thereto, which existing credit agreement is guaranteed by the
Guaranty, dated as of July 29, 1994 (the "Existing Guaranty"). It is a
condition precedent to the effectiveness of the Credit Agreement that the
Existing Guaranty be amended and restated as set forth herein.
NOW, THEREFORE, in consideration of the above premises, and in order to
induce the Lenders to make the Loans and the Issuing Banks to issue the Letters
of Credit under the Credit Agreement, the Guarantor agrees, and the Agent, by
acceptance hereof, hereby agrees, that the Existing Guaranty is hereby amended
and restated in its entirety as follows:
1. Guaranty.
(a) The Guarantor hereby unconditionally and irrevocably guarantees to the
Agent, for its benefit and the benefit of the Lenders and the Issuing Banks, the
full and prompt payment when due, whether at maturity or earlier, by reason of
acceleration, mandatory prepayment or otherwise, and in accordance with the
terms and conditions of the Credit Agreement, of all of the Obligations, whether
or not from time to time reduced or extinguished or hereafter increased or
incurred, whether or not recovery may be or hereafter may become barred by any
statute of limitations, and whether enforceable or unenforceable as against the
Borrower, now or hereafter existing, or due or to become due (all such
indebtedness, liabilities and obligations being hereinafter collectively
referred to as the "Guaranteed Obligations").
(b) The Guarantor further agrees that, if any payment made by the Borrower
or any other person and applied to the Guaranteed Obligations is at any time
annulled, set aside, rescinded, invalidated, declared to be fraudulent or
preferential or otherwise required to be refunded or repaid, or the proceeds of
Collateral are required to be returned by the Agent, any of the Lenders or the
Issuing Banks to the Borrower, its estate, trustee, receiver or any other party,
including, without limitation, the Guarantor, under any bankruptcy law, state or
federal law, common law or equitable cause, then, to the extent of such payment
or repayment, the Guarantor's liability hereunder (and any lien, security
interest or other collateral securing such liability) shall be and remain in
full force and effect, as fully as if such payment had never been made, or, if
prior thereto this Guaranty shall have been cancelled or surrendered (and if any
lien, security interest or other collateral securing Guarantor's liability
hereunder shall have been released or terminated by virtue of such cancellation
or surrender), this Guaranty (and such lien, security interest or other
collateral) shall be reinstated in full force and effect, and such prior
cancellation or surrender shall not diminish, release, discharge, impair or
otherwise affect the obligations of the Guarantor in respect of the amount of
such payment (or any lien, security interest or other collateral securing such
obligation).
(c) The Guarantor further agrees to pay all costs and expenses upon demand
including, without limitation, all court costs and reasonable attorneys' fees
and expenses paid or incurred by the Agent (i) in endeavoring to collect all or
any part of the Guaranteed Obligations after the same become due and owing from,
or in prosecuting any action against, the Guarantor or any other guarantor of
all or any part of the Guaranteed Obligations or (ii) in endeavoring to realize
upon (whether by judicial, non-judicial or other proceedings) any Collateral or
any other collateral securing Guarantor's liabilities under this Guaranty.
2. Representations and Warranties.
The Guarantor hereby represents and warrants to the Agent that each
representation and warranty made by Borrower in Article V of the Credit
Agreement applicable to the Guarantor is true and correct, which representations
and warranties (except such representations and warranties which are expressly
made as of a different date) shall survive the execution and delivery of this
Guaranty, and shall, except to the extent that the same have been modified by a
writing delivered to and accepted in writing by the Agent, and, other than with
respect to changes permitted or contemplated by the Credit Agreement, continue
to be true and correct on the date of each Loan, and on the date of issuance of
each Letter of Credit.
3. Waivers; Other Agreements.
(a) The Agent is hereby authorized, without notice to or demand upon the
Guarantor, which notice or demand is expressly waived hereby, and without
discharging or otherwise affecting the obligations of the Guarantor hereunder
(which shall remain absolute and unconditional notwithstanding any such action
or omission to act), from time to time, to:
(i) supplement, renew, extend, accelerate or otherwise change the
time for payment of, or other terms relating to, the Guaranteed
Obligations, or otherwise modify, amend or change the terms of any
promissory note or other agreement, document or instrument (including the
Credit Agreement and the other Loan Documents) now or hereafter executed by
the Borrower and delivered to the Agent, including, without limitation, any
increase or decrease of the rate of interest thereon;
(ii) waive or otherwise consent to noncompliance with any provision
of any instrument evidencing the Guaranteed Obligations, or any part
thereof, or any other instrument or agreement in respect of the Guaranteed
Obligations (including the Credit Agreement and the other Loan Documents)
now or hereafter executed by the Borrower and delivered to the Agent;
(iii) accept partial payments on the Guaranteed Obligations;
(iv) receive, take and hold additional security or collateral for the
payment of the Guaranteed Obligations, or for the payment of any other
guaranties of the Guaranteed Obligations or other liabilities of the
Borrower, and exchange, enforce, waive, substitute, liquidate, terminate,
abandon, fail to perfect, subordinate, transfer, otherwise alter and
release any such additional security or collateral;
(v) apply any and all such security or collateral and direct the
order or manner of sale thereof as the Agent may determine in its sole
discretion;
(vi) settle, release, compromise, collect or otherwise liquidate the
Guaranteed Obligations or accept, substitute, release, exchange or
otherwise alter, affect or impair any security or collateral for the
Guaranteed Obligations or any other guaranty therefor, in any manner;
(vii) add, release or substitute any one or more other guarantors,
makers or endorsers of the Guaranteed Obligations and otherwise deal with
the Borrower or any other guarantor, maker or endorser as the Agent may
elect in its sole discretion;
(viii) apply any and all payments or recoveries from the Borrower,
from any other guarantor, maker or endorser of the Guaranteed Obligations
or from the Guarantor to the Guaranteed Obligations to the Obligations in
such order as provided in subsection 2.06(b) of the Credit Agreement,
whether such Guaranteed Obligations are secured or unsecured or guaranteed
or not guaranteed by others;
(ix) apply any and all payments or recoveries from the Guarantor or
any other guarantor, maker or endorser of the Guaranteed Obligations or
sums realized from security furnished by any of them upon any of their
indebtedness or obligations to the Agent as the Agent in its sole
discretion, may determine, whether or not such indebtedness or obligations
relate to the Guaranteed Obligations; and
(x) refund at any time, at the Agent's sole discretion, any payment
received by the Agent in respect of any Guaranteed Obligations, and payment
to the Agent of the amount so refunded shall be fully guaranteed hereby
even though prior thereto this Guaranty shall have been cancelled or
surrendered (or any release or termination of any collateral by virtue
thereof) by the Agent, and such prior cancellation or surrender shall not
diminish, release, discharge, impair or otherwise affect the obligations of
the Guarantor hereunder in respect of the amount so refunded (and any
collateral so released or terminated shall be reinstated with respect to
such obligations);
even if any right of reimbursement or subrogation or other right or remedy of
the Guarantor is extinguished, affected or impaired by any of the foregoing
(including, without limitation, any election of remedies by reason of any
judicial, non-judicial or other proceeding in respect of the Guaranteed
Obligations which impairs any subrogation, reimbursement or other right of
Guarantor).
(b) The Guarantor hereby agrees that its obligations under this Guaranty
are absolute and unconditional and shall not be discharged or otherwise affected
as a result of:
(i) the invalidity or unenforceability of any security for or other
guaranty of the Guaranteed Obligations or of any promissory note or other
document (including, without limitation, the Credit Agreement) evidencing
all or any part of the Guaranteed Obligations, or the lack of perfection or
continuing perfection or failure of priority of any security for the
Guaranteed Obligations or any other guaranty therefor;
(ii) the absence of any attempt to collect the Guaranteed Obligations
from the Borrower or any other guarantor or other action to enforce the
same;
(iii) failure by the Agent to take any steps to perfect and maintain
any security interest in, or to preserve any rights to, any security or
collateral for the Guaranteed Obligations or any other guaranty therefor;
(iv) the Agent's election, in any proceeding instituted under Chapter
11 of Title 11 of the United States Code (11 U.S.C. 101 et seq.) (the
"Bankruptcy Code"), of the application of Section 1111(b)(2) of the
Bankruptcy Code;
(v) any borrowing or grant of a security interest by the Borrower, as
debtor-in-possession, or extension of credit, under Section 364 of the
Bankruptcy Code;
(vi) the disallowance, under Section 502 of the Bankruptcy Code, of
all or any portion of the Agent's claim(s) for repayment of the Guaranteed
Obligations;
(vii) any use of cash collateral under Section 363 of the Bankruptcy
Code;
(viii) any agreement or stipulation as to the provision of adequate
protection in any bankruptcy proceeding;
(ix) the avoidance of any lien in favor of the Agent for any reason;
(x) any bankruptcy, insolvency, reorganization, arrangement,
readjustment of debt, liquidation or dissolution proceeding commenced by or
against Borrower, the Guarantor or any other guarantor, maker or endorser,
including without limitation, any discharge of, or bar or stay against
collecting, all or any of the Guaranteed Obligations (or any interest
thereon) in or as a result of any such proceeding;
(xi) failure by the Agent to file or enforce a claim against the
Borrower or its estate in any bankruptcy or insolvency case or proceeding;
(xii) any action taken by the Agent that is authorized by this
Guaranty;
(xiii) any election by the Agent under Section 9-501(4) of the
Uniform Commercial Code as enacted in any relevant jurisdiction (the
"Code") as to any security for the Guaranteed Obligations or any guaranty
of the Guaranteed Obligations; or
(xiv) any other circumstance which might otherwise constitute a legal
or equitable discharge or defense of a guarantor.
(c) The Guarantor hereby waives:
(i) any requirements of diligence or promptness on the part of the
Agent;
(ii) presentment, demand for payment or performance and protest and
notice of protest with respect to the Guaranteed Obligations;
(iii) notices (A) of nonperformance, (B) of acceptance of this
Guaranty, (C) of default in respect of the Guaranteed Obligations, (D) of
the existence, creation or incurrence of new or additional indebtedness,
arising either from additional loans extended to the Borrower or otherwise,
(E) that the principal amount, or any portion thereof, and/or any interest
on any instrument or document evidencing all or any part of the Guaranteed
Obligations is due, (F) of any and all proceedings to collect from the
Borrower, any endorser or any other guarantor of all or any part of the
Guaranteed Obligations, or from anyone else, and (G) of exchange, sale,
surrender or other handling of any security or collateral given to the
Agent to secure payment of the Guaranteed Obligations or any guaranty
therefor;
(iv) any right to require the Agent to (a) proceed first against the
Borrower, or any other person whatsoever, (b) proceed against or exhaust
any security given to or held by the Agent in connection with the
Guaranteed Obligations, or (c) pursue any other remedy in the Agent's power
whatsoever;
(v) any defense arising by reason of (a) any disability or other
defense of the Borrower, (b) the cessation from any cause whatsoever of the
liability of the Borrower, (c) any act or omission of the Agent or others
which directly or indirectly, by operation of law or otherwise, results in
or aids the discharge or release of the Borrower or any security given to
or held by the Agent in connection with the Guaranteed Obligations;
(vi) any and all other suretyship defenses under applicable law; and
(vii) the benefit of any statute of limitations affecting the
Guaranteed Obligations or the Guarantor's liability hereunder or the
enforcement hereof.
In connection with the foregoing, the Guarantor covenants that this Guaranty
shall not be discharged, except by complete performance of the obligations
contained herein.
(d) The Guarantor hereby assumes responsibility for keeping itself
informed of the financial condition of the Borrower, of any and all endorsers
and/or other guarantors of any instrument or document evidencing all or any part
of the Guaranteed Obligations and of all other circumstances bearing upon the
risk of nonpayment of the Guaranteed Obligations or any part thereof that
diligent inquiry would reveal and the Guarantor hereby agrees that the Agent
shall not have any duty to advise the Guarantor of information known to the
Agent regarding such condition or any such circumstances.
(e) Notwithstanding anything to the contrary in this Guaranty, the
Guarantor hereby irrevocably waives all rights which may have arisen in
connection with this Guaranty to be subrogated to any of the rights (whether
contractual, under the Bankruptcy Code, including Section 509 thereof, under
common law or otherwise) of the Agent, the Lenders or the Issuing Banks against
the Borrower or against any collateral security or guarantee or right of offset
held by such Person for the payment of the Obligations. The Guarantor hereby
further irrevocably waives all contractual, common law, statutory or other
rights of reimbursement, contribution, exoneration or indemnity (or any similar
right) from or against the Borrower or any other Person which may have arisen in
connection with this Guaranty. So long as the Obligations remain outstanding,
if any amount shall be paid by or on behalf of the Borrower to the Guarantor on
account of any of the rights waived in this paragraph, such amount shall be held
by the Guarantor in trust, segregated from other funds of such Guarantor, and
shall, forthwith upon receipt by such Guarantor, be turned over to the Agent in
the exact form received by the Guarantor (duly indorsed by the Guarantor to the
Agent, if required), to be applied against the Obligations, whether matured or
unmatured, in such order as the Agent may determine. The provisions of this
paragraph shall survive the term of this Guaranty and the payment in full of the
Obligations and the termination of the commitments of the Lenders to extend
credit under the Credit Agreement.
(f) The Guarantor hereby agrees that any indebtedness of the Borrower now
or hereafter owing to the Guarantor is hereby subordinated to all of the
Guaranteed Obligations, whether heretofore, now or hereafter created (the
"Subordinated Debt"), and that without the prior consent of the Agent, the
Subordinated Debt shall not be paid in whole or in part until the Guaranteed
Obligations have been paid in full, the commitments of the Lenders to extend
credit under the Credit Agreement have been terminated and the Credit Agreement
has been terminated and is of no further force or effect, except that payments
of principal and interest on the Subordinated Debt shall be permitted so long as
no Potential Event of Default or Event of Default shall have occurred and be
continuing to the extent such payments would not render the Borrower incapable
of performing the Guaranteed Obligations. The Guarantor will not accept any
payment of or on account of any Subordinated Debt at any time in contravention
of the foregoing. At the request of the Agent, the Borrower shall pay to the
Agent all or any part of the Subordinated Debt and any amount so paid to the
Agent shall be applied to payment of the Guaranteed Obligations. Each payment
on the Subordinated Debt received in violation of any of the provisions hereof
shall be deemed to have been received by Guarantor as trustee for the Agent and
shall be paid over to the Agent immediately on account of the Guaranteed
Obligations, but without otherwise affecting in any manner the Guarantor's
liability under any of the provisions of this Guaranty. The Guarantor agrees to
file all claims against the Borrower in any bankruptcy or other proceeding in
which the filing of claims is required by law in respect of any Subordinated
Debt, and the Agent shall be entitled to all of the Guarantor's right
thereunder. If for any reason the Guarantor fails to file such claim at least
thirty (30) days prior to the last date on which such claim should be filed, the
Agent, as the Guarantor's attorney-in-fact, is hereby authorized to do so in the
Guarantor's name or, in the Agent's discretion, to assign such claim to and
cause proof of claim to be filed in the name of the Agent or its nominee. In
all such cases, whether in administration, bankruptcy or otherwise, the person
or persons authorized to pay such claim shall pay to the Agent the full amount
payable on the claim in the proceeding, and, to the full extent necessary for
that purpose, the Guarantor hereby assigns to the Agent all Guarantor's rights
to any payments or distributions to which the Guarantor otherwise would be
entitled. If the amount so paid is greater than the Guarantor's liability
hereunder, the Agent will pay the excess amount to the party entitled thereto.
In addition, the Guarantor hereby appoints Agent as its attorney-in-fact to
exercise all of the Guarantor's voting rights in connection with any bankruptcy
proceeding or any plan for the reorganization of the Borrower.
(g) The Guarantor shall comply with all covenants applicable to it under
the Credit Agreement and shall otherwise take no action which will cause an
Event of Default or Potential Event of Default under the Credit Agreement. The
Guarantor shall also cause the Borrower to comply with all covenants applicable
to the Borrower under the Credit Agreement.
4. Default, Remedies.
(a) The obligations of the Guarantor hereunder are independent of and
separate from the Guaranteed Obligations and the obligations of any other
guarantor of the Guaranteed Obligations. If any of the Guaranteed Obligations
are not paid when due, or upon any Event of Default or any default by Borrower
as provided in any other instrument or document evidencing all or any part of
the Guaranteed Obligations, the Agent may, at its sole election, proceed
directly and at once, without notice, against the Guarantor to collect and
recover the full amount or any portion of the Guaranteed Obligations, without
first proceeding against the Borrower or any other guarantor of the Guaranteed
Obligations, or against any Collateral for the Guaranteed Obligations under the
ATSC Pledge Agreement or otherwise against any Collateral under other Collateral
Documents.
(b) At any time after maturity of the Guaranteed Obligations, the Agent
may, without notice to the Guarantor and regardless of the acceptance of any
security or collateral for the payment hereof, appropriate and apply toward the
payment of the Guaranteed Obligations (i) any indebtedness due or to become due
from the Agent to the Guarantor and (ii) any moneys, credits or other property
belonging to the Guarantor at any time held by or coming into the possession of
the Agent or any of its affiliates.
(c) The Guarantor hereby authorizes and empowers the Agent, in its sole
discretion, without any notice (except notices required by law to the extent
such notice as a matter of law may not be waived) or demand to the Guarantor
whatsoever and without affecting the liability of the Guarantor hereunder, to
exercise any right or remedy which the Agent may have available to it, including
but not limited to, foreclosure by one or more judicial or nonjudicial sales,
and the Guarantor hereby waives any defense to the recovery by the Agent against
the Guarantor of any deficiency after such action, notwithstanding any
impairment or loss of any right of reimbursement, contribution, subrogation or
other right or remedy against the Borrower, or any other guarantor, maker or
endorser, or against any security for the Guaranteed Obligations or for any
guaranty of the Guaranteed Obligations. No exercise by the Agent of, and no
omission of the Agent to exercise, any power or authority recognized herein and
no impairment or suspension of any right or remedy of the Agent against the
Guarantor, any other guarantor, maker or endorser or any security shall in any
way suspend, discharge, release, exonerate or otherwise affect any of the
Guarantor's obligations hereunder or give to the Guarantor any right of recourse
against the Agent, the Lenders or the Issuing Banks.
(d) The Guarantor consents and agrees that the Agent shall not be under
any obligation to make any demand upon or pursue or exhaust any of its rights or
remedies against the Borrower or any guarantor or others with respect to the
payment of the Guaranteed Obligations, or to pursue or exhaust any of its rights
or remedies with respect to any security therefor, or any direct or indirect
guaranty thereof or any security for any such guaranty, or to marshal any assets
in favor of the Guarantor or against or in payment of any or all of the
Guaranteed Obligations or to resort to any security or any such guaranty in any
particular order, and all of its rights hereunder, under the ATSC Pledge
Agreement and the other Loan Documents shall be cumulative. The Guarantor
hereby agrees to waive, and does hereby absolutely and irrevocably waive and
relinquish the benefit and advantage of, and does hereby covenant not to assert
against the Agent any valuation, stay, appraisal, extension or redemption laws
now existing or which may hereafter exist which, but for this provision, might
be applicable to any sale made under the judgment, order or decree of any court,
or privately under the power of sale conferred by this Guaranty or the ATSC
Pledge Agreement. Without limiting the generality of the foregoing, the
Guarantor hereby agrees that it will not invoke or utilize any law which might
cause delay in or impede the enforcement of the rights under this Guaranty, the
ATSC Pledge Agreement or any of the other Loan Documents.
5. Miscellaneous.
(a) This Guaranty shall be irrevocable as to any and all of the Guaranteed
Obligations until the Credit Agreement has been terminated, the commitments of
the Lenders to extend credit under the Credit Agreement have been terminated and
all Guaranteed Obligations then outstanding have been repaid.
(b) This Guaranty shall be binding upon the Guarantor and upon its
successors and assigns, heirs and legal representatives and shall inure to the
benefit of the Agent, the Lenders and the Issuing Banks; all references herein
to the Borrower and to the Guarantor shall be deemed to include their successors
and assigns, heirs and legal representatives as applicable. The Borrower's
successors and assigns shall include a receiver, trustee or debtor-in-possession
of or for the Borrower. All references to the singular shall be deemed to
include the plural where the context so requires. The Guarantor acknowledges
the Agent's acceptance hereof and reliance hereon.
(c) No delay on the part of the Agent in the exercise of any right or
remedy shall operate as a waiver thereof, and no single or partial exercise by
the Agent of any right or remedy shall preclude any further exercise thereof;
nor shall any modification or waiver of any of the provisions of this Guaranty
be binding upon the Agent, except as expressly set forth in a writing duly
signed and delivered by the Agent or on the Agent's behalf by an authorized
officer or agent of the Agent. The Agent's failure at any time or times
hereafter to require strict performance by the Borrower or of the Guarantor or
any other guarantor of any of the provisions, warranties, terms and conditions
contained in any promissory note, security agreement, agreement, guaranty,
instrument or document now or at any time or times hereafter executed by the
Borrower or the Guarantor or any other guarantor and delivered to the Agent
shall not waive, affect or diminish any right of the Agent at any time or times
hereafter to demand strict performance thereof and such right shall not be
deemed to have been waived by any act or knowledge of the Agent, its agents,
officers or employees, unless such waiver is contained in an instrument in
writing signed by an officer or agent of the Agent and directed to the Borrower
or the Guarantor, or either of them (as the case may be) specifying such waiver.
No waiver by the Agent of any default shall operate as a waiver of any other
default or the same default on a future occasion, and no action by the Agent
permitted hereunder shall in any way affect or impair the Agent's rights or the
obligations of the Guarantor under this Guaranty. Any determination by a court
of competent jurisdiction of the amount of any principal and/or interest owing
by the Borrower to the Agent shall be conclusive and binding on the Guarantor
irrespective of whether it was a party to the suit or action in which such
determination was made.
(d) THIS GUARANTY SHALL BE CONSTRUED IN ALL RESPECTS IN ACCORDANCE WITH,
AND GOVERNED BY, THE LAWS OF THE STATE OF NEW YORK. Whenever possible, each
provision of this Guaranty shall be interpreted in such a manner as to be
effective and valid under applicable law, but if any provision of this Guaranty
shall be prohibited by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provisions or the remaining provisions of
this Guaranty.
(e) Consent to Jurisdiction and Service of Process; Waiver of Jury Trial.
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST THE GUARANTOR WITH RESPECT TO THIS
GUARANTY MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION
IN THE STATE OF NEW YORK, AND BY EXECUTION AND DELIVERY OF THIS GUARANTY, THE
GUARANTOR ACCEPTS, FOR ITSELF IN AND IN CONNECTION WITH ITS PROPERTIES,
GENERALLY AND UNCONDITIONALLY, THE NONEXCLUSIVE JURISDICTION OF THE AFORESAID
COURTS, AND IRREVOCABLY AGREES TO BE BOUND BY ANY FINAL JUDGMENT RENDERED
THEREBY IN CONNECTION WITH THIS FROM WHICH NO APPEAL HAS BEEN TAKEN OR IS
AVAILABLE. THE GUARANTOR IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OF ANY
OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF
COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO ITS NOTICE
ADDRESS SPECIFIED ON THE FIRST PAGE HEREOF, SUCH SERVICE TO BECOME EFFECTIVE TEN
(10) DAYS AFTER SUCH MAILING. EACH OF THE GUARANTOR AND, BY ACCEPTANCE HEREOF,
THE AGENT AND THE LENDERS, IRREVOCABLY WAIVES (A) TRIAL BY JURY IN ANY ACTION OR
PROCEEDING WITH RESPECT TO THIS GUARANTY OR ANY OTHER LOAN DOCUMENT, AND (B) ANY
OBJECTION (INCLUDING WITHOUT LIMITATION, ANY OBJECTION OF THE LAYING OF VENUE OR
BASED ON THE GROUNDS OF FORUM NON CONVENIENS) WHICH IT MAY NOW OR HEREAFTER HAVE
TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY
IN ANY JURISDICTION SET FORTH ABOVE. NOTHING HEREIN SHALL AFFECT THE RIGHT TO
SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
(f) This Guaranty (and any instrument or agreement granting or creating
any security for this Guaranty) contains all the terms and conditions of the
agreement between the Agent and the Guarantor relating to the subject matter
hereof. The terms or provisions of this Guaranty may not be waived, altered,
modified or amended except in writing duly executed by the party to be charged
thereby.
(g) Neither the Agent nor its Affiliates, directors, officers, agents,
attorneys or employees shall be liable to the Guarantor for any action taken, or
omitted to be taken, by it or them or any of them under this Guaranty, or the
other Loan Documents or in connection therewith except that no person shall be
relieved of any liability for gross negligence or willful misconduct as
determined by a final judgment of a court of competent jurisdiction.
(h) The Guarantor warrants and agrees that each of the waivers set forth
in this Guaranty are made with full knowledge of their significance and
consequences, and that under the circumstances, the waivers are reasonable. If
any of said waivers are determined to be contrary to any applicable law or
public policy, such waivers shall be effective only to the maximum extent
permitted by law. Should any one or more provisions of this Guaranty be
determined to be illegal or unenforceable, all other provisions hereof shall
nevertheless remain effective.
(i) Wherever possible each provision of this Guaranty shall be interpreted
in such manner as to be effective and valid under applicable law, but if any
provision of this Guaranty shall be prohibited by or invalid under such law,
such provision shall be ineffective to the extent of such prohibition or
invalidity without invalidating the remainder of such provision or the remaining
provisions of this Guaranty.
(j) Captions are for convenience only and shall not affect the meaning of
any term or provision of this Guaranty.
(k) All notices and other communications provided for hereunder shall be
given in the manner set forth in the Credit Agreement and to the addresses set
forth in the Credit Agreement or, in the case of the Guarantor, at its addresses
set forth above.
IN WITNESS WHEREOF, undersigned have made this Guaranty as of the date
first above written.
ANNTAYLOR STORES CORPORATION
By: _
Title:
Agreed and accepted to as of
the date first above written:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Agent
By: _
Title:
EXHIBIT 4.01(a)(v)
FORM OF ATSC PLEDGE AGREEMENT
THIS AMENDED AND RESTATED SECURITY AND PLEDGE AGREEMENT (as such agreement
may be amended, supplemented or otherwise modified from time to time, this
"Agreement"), dated as of September 29, 1995, is made by ANNTAYLOR STORES
CORPORATION, a Delaware corporation, with its principal place of business
located at 142 West 57th Street, New York, New York 10019 (the "Grantor"), in
favor of BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, with an office
located at 1455 Market Street, San Francisco, California 94103, in its capacity
as Agent under the Credit Agreement (as defined below) (the "Agent").
R E C I T A L S:
ANNTAYLOR, INC., a Subsidiary of the Grantor, (the "Borrower"), the Agent,
BA Securities, Inc., as Arranger, Bank of America National Trust and Fleet Bank,
National Association, as Co-Agents, and certain financial institutions currently
and in the future to be parties to the Credit Agreement (such financial
institutions being collectively the "Lenders") have entered into a certain
Amended and Restated Credit Agreement dated as of September 29, 1995, (as such
agreement may be amended, supplemented or otherwise modified from time to time,
the "Credit Agreement"; the capitalized terms not otherwise defined herein are
being used herein as defined in the Credit Agreement), which provides for the
Lenders to make the Loans and the Issuing Banks to issue the Letters of Credit.
The Credit Agreement amends and restates an existing credit agreement among the
parties thereto, which existing credit agreement was guaranteed by the Grantor
pursuant to the Guaranty, dated as of July 29, 1994 (the "Existing Guaranty").
The Existing Guaranty was secured pursuant to the Pledge Agreement, dated as of
July 29, 1994 (the "Existing Pledge Agreement"), between the Grantor and the
Agent. As a condition precedent to the effectiveness of the Credit Agreement
(i) the Existing Guaranty is being amended and restated by the Guaranty, dated
as of the date hereof, by the Grantor in favor of the Agent (as amended,
supplemented or otherwise modified from time to time, the "Guaranty") and (ii)
the Existing Pledge Agreement is being amended and restated in its entirety
hereby.
NOW, THEREFORE, in consideration of the above premises and in order to
induce the Lenders to make the Loans and each Issuing Bank to issue the Letters
of Credit under the Credit Agreement, the Grantor hereby agrees with the Agent
for its benefit, and for the benefit of the Lenders and the Issuing Banks, and
the Agent, by acceptance hereof, hereby agrees, that the Existing Pledge
Agreement is hereby amended and restated in its entirety as follows:
Section 1. Grant of Security. To secure the prompt and complete payment,
observance and performance when due (whether at the stated maturity, by
acceleration or otherwise) of all the Guaranteed Obligations (as defined in the
Guaranty) and all other obligations of the Grantor under the Guaranty, the
Grantor hereby assigns and pledges to the Agent, and hereby grants to the Agent,
for its benefit and the benefit of the Lenders and the Issuing Banks, a security
interest in, all of the Grantor's right, title and interest in and to the
following, whether now owned or existing or hereafter arising or acquired and
wheresoever located (collectively, the "Collateral"):
EQUIPMENT: All machinery and equipment, all manufacturing, distribution,
selling, data processing and office equipment, all furniture, furnishings,
appliances, fixtures and trade fixtures, tools, tooling, molds, dies, vehicles,
vessels, aircraft and all other goods of every type and description (other than
"inventory", as such term is defined in the Uniform Commercial Code in effect on
the date hereof in the State of New York (the "UCC")), in each instance whether
now owned or hereafter acquired by the Grantor and wherever located
(collectively, "Equipment");
GENERAL INTANGIBLES: All rights, interests, choses in action, causes of
action, claims and all other intangible property of the Grantor of every kind
and nature (other than "accounts", as such term is defined in the UCC), in each
instance whether now owned or hereafter acquired by the Grantor, including,
without limitation, all corporate and other business records; all loans,
royalties, and other obligations receivable; all inventions, designs, patents,
patent applications, service marks, trade names and trademarks (including any
applications for the foregoing and whether or not registered) and the goodwill
of the Grantor's business connected with and symbolized by such trademarks,
trade secrets, computer programs, software, printouts and other computer
materials, goodwill, registrations, U.S. registered copyrights, licenses
relating to trademarks and U.S. registered copyrights, franchises, customer
lists, credit files, correspondence and advertising materials; all customer and
supplier contracts, firm sale orders, rights under license and franchise
agreements, and other contracts and contract rights; all interests in
partnerships, joint ventures and other entities; all tax refunds and tax refund
claims; all right, title and interest under leases, subleases, licenses and
concessions and other agreements relating to real or personal property; all pay
ments due or made to the Grantor in connection with any requisition,
confiscation, condemnation, seizure or forfeiture of any property by any person
or governmental authority; all deposit accounts (general or special) with any
bank or other financial institution; all credits with and other claims against
carriers and shippers; all rights to indemnification; all reversionary interests
in pension and profit sharing plans and reversionary, beneficial and residual
interest in trusts; all proceeds of insurance of which the Grantor is
beneficiary; and all letters of credit, guaranties, liens, security interests
and other security held by or granted to the Grantor; and all other intangible
property, whether or not similar to the foregoing, including, without
limitation, all "general intangibles", as such term is defined in the UCC (in
each instance, however and wherever arising, collectively, "General
Intangibles");
CHATTEL PAPER, INSTRUMENTS AND DOCUMENTS: All chattel paper, all
instruments (including, without limitation, (a) the shares of stock described in
Annex I-A hereto (the "Pledged Shares") and all dividends, instruments and other
property from time to time distributed in respect thereof or in exchange
therefor, and (b) the notes and debt instruments described in Annex I-B hereto
(the "Pledged Debt") and all payments thereunder and instruments and other
property from time to time delivered in respect thereof or in exchange
therefor), and all bills of lading, warehouse receipts and other documents of
title and documents, including, without limitation, all "chattel paper",
"instruments" and documents", as such terms are defined in the UCC, in each
instance whether now owned or hereafter acquired by the Grantor, other than any
promissory note in an amount less than $1,000,000 owing to the Grantor from a
senior executive or key employee of the Grantor (an "Excluded Note")
(collectively, "Chattel Paper, Instruments and Documents"); and
OTHER PROPERTY: All property or interests in property now owned or
hereafter acquired by the Grantor which now may be owned or hereafter may come
into the possession, custody or control of the Agent, any of the Lenders, any
Issuing Bank or any agent or Affiliate of any of them in any way or for any
purpose (whether for safekeeping, deposit, custody, pledge, transmission,
collection or otherwise); and all rights and interests of the Grantor, now
existing or hereafter arising and however and wherever arising, in respect of
any and all (i) notes, drafts, letters of credit, stocks, bonds, and debt and
equity securities, whether or not certificated, and warrants, options, puts and
calls and other rights to acquire or otherwise relating to the same; (ii) money;
(iii) proceeds of loans; and (iv) insurance proceeds and books and records
relating to any of the property covered by this Agreement (collectively, "Other
Property");
together, in each instance, with all accessions and additions thereto,
substitutions therefor, and replacements, proceeds and products thereof.
Section 2. Grantor Remains Liable. Anything herein to the contrary
notwithstanding, the Grantor shall remain liable under the contracts and
agreements included in the Collateral to the extent set forth therein to perform
its duties and obligations thereunder to the same extent as if this Agreement
had not been executed, (b) the exercise by the Agent of any of its rights
hereunder shall not release the Grantor from any of its duties or obligations
under the contracts and agreements included in the Collateral (except to the
extent that such exercise prevents the Grantor from satisfying such duties and
obligations), and (c) the Agent shall not have any obligation or liability under
the contracts and agreements included in the Collateral by reason of this
Agreement, nor shall the Agent be obligated to perform any of the obligations or
duties of the Grantor thereunder, to make any payment, to make any inquiry as to
the nature or sufficiency of any payment received by the Grantor or the
sufficiency of any performance by any party under any such contract or agreement
or to take any action to collect or enforce any claim for payment assigned
hereunder.
Section 3. Delivery of Pledged Collateral. All certificates, notes and
other instruments representing or evidencing the Pledged Shares or the Pledged
Debt and all other instruments now owned or at anytime hereafter acquired by the
Grantor other than any Excluded Notes (collectively, the "Pledged Collateral")
shall be delivered to and held by or on behalf of the Agent pursuant hereto
(except as otherwise provided in the last sentence of Section 4(f) hereof) and
shall be in suitable form for transfer by delivery, or shall be accompanied by
duly executed instruments of transfer or assignments in blank, all in form and
substance satisfactory to the Agent. Upon the occurrence and during the
continuance of an Event of Default, the Agent shall have the right, at any time
in its discretion and without notice to the Grantor, to transfer to or to
register in the name of the Agent or any nominee of the Agent any or all of the
Pledged Collateral, subject only to the revocable rights specified in Section 8
hereof. In addition, upon the occurrence and during the continuance of an Event
of Default, the Agent shall have the right at any time to exchange certificates
or instruments representing or evidencing Pledged Collateral for certificates or
instruments of smaller or larger denominations.
Section 4. Representations and Warranties. The Grantor represents and
warrants as follows:
(a) As of the date of this Agreement, the locations listed on Annex
II to this Agreement constitute all locations at which Equipment is
located, except for Equipment temporarily in transit. As of the date of
this Agreement, the chief place of business and chief executive office of
the Grantor are located at the address first specified above for the
Grantor.
(b) The Grantor is the legal and beneficial owner of the Collateral
free and clear of all liens, security interests or other encumbrances,
except (other than in respect of Pledged Collateral described in (e) below)
as expressly permitted by subsection 8.02(b) of the Credit Agreement.
Since the date of its incorporation, Grantor has conducted business only
under its own corporate name (including its former corporate name,
AnnTaylor Holdings, Inc.) and not under any trade name or other name.
(c) The Grantor has exclusive possession and control of the
Equipment, except for (i) Equipment in the possession and control of the
Grantor's lessees and licensees under written lease and license agreements
entered into in the ordinary course of business and consistent with past
practice and (ii) Equipment in transit with common or other carriers.
(d) The Pledged Shares have been duly authorized and validly issued
and are fully paid and non-assessable. The Pledged Debt of Grantor's
Subsidiaries (if any), and, to the best of the Grantor's knowledge, all
other Pledged Debt, has been duly authorized, issued and delivered, and is
the legal, valid, binding and enforceable obligation of the issuers
thereof.
(e) The Pledged Shares indicated on Annex I-A hereto constitute all
of the shares held by the Grantor of the respective issuers thereof. The
Pledged Shares and the Pledged Debt constitute all of the Pledged
Collateral except for Pledged Collateral consisting of checks and drafts
received in the ordinary course of business and with respect to which the
Agent has not at any time requested possession and which are not a material
portion of the Collateral under this Agreement (the "Personal Property
Collateral") either singly or in the aggregate.
(f) This Agreement creates a valid security interest in the
Collateral (other than the Pledged Collateral), securing the payment of the
Guaranteed Obligations, and all filings and other actions necessary or
desirable to perfect such security interest under the Uniform Commercial
Code as enacted in any relevant jurisdiction have been duly taken or will
be duly taken not later than five Business Days after the date hereof (all
such actions being the filing of financing statements in the filing offices
listed on Annex III hereto). The pledge and delivery of the Pledged
Collateral pursuant to this Agreement and all other filings and other
actions taken by the Grantor to perfect such security interest prior to the
date hereof, create a valid and perfected first priority security interest
in the Pledged Collateral, securing the payment of the Guaranteed
Obligations except for Pledged Collateral consisting of checks and drafts
received in the ordinary course of business with respect to which the Agent
has not at any time requested possession and which are not a material
portion of the Personal Property Collateral either singly or in the
aggregate.
(g) Other than filings under the UCC, no authorization, approval or
other action by, and no notice to or filing with, any federal, state or
local governmental authority that have not already been taken or made and
which are in full force and effect, is required (i) for the pledge by the
Grantor of the Pledged Collateral or for the grant by the Grantor of the
security interest in the Collateral granted hereby or for the execution,
delivery or performance of this Agreement by the Grantor, (ii) for the
exercise by the Agent of the voting or other rights provided in this
Agreement with respect to the Pledged Collateral or the remedies in respect
of the Pledged Collateral pursuant to this Agreement (except as may be
required in connection with the disposition thereof by laws affecting the
offering and sale of securities generally), or (iii) for the exercise by
the Agent of any of its other rights or remedies hereunder.
Section 5. Further Assurances.
(a) The Grantor agrees that from time to time, at the expense of the
Grantor, the Grantor will promptly execute and deliver all further
instruments and documents, and take all further action, that may be
necessary or desirable, or that the Agent may reasonably request, in order
to perfect and protect any security interest granted or purported to be
granted hereby or to enable the Agent to exercise and enforce its rights
and remedies hereunder with respect to any Collateral. Without limiting
the generality of the foregoing, at the request of the Agent, the Grantor
shall: (i) if an Event of Default shall have occurred and be continuing,
mark conspicuously each document included in the Collateral at the request
of the Agent made at any time, and whether or not an Event of Default shall
have occurred, mark each of its records pertaining to the Collateral with a
legend, in form and substance satisfactory to the Agent, indicating that
such document or Collateral is subject to the security interest granted
hereby; and (ii) execute and file such financing or continuation
statements, or amendments thereto, and such other instruments or notices,
as may be necessary or desirable, or as the Agent may reasonably request,
in order to perfect and preserve the security interests granted or
purported to be granted hereby.
(b) The Grantor hereby authorizes the Agent to file one or more
financing or continuation statements, and amendments thereto, relative to
all or any part of the Collateral without the signature of the Grantor
where permitted by law. A carbon, photographic or other reproduction of
this Agreement or any financing statement covering the Collateral or any
part thereof shall be sufficient as a financing statement where permitted
by law.
(c) The Grantor shall furnish to the Agent from time to time
statements and schedules further identifying and describing the Collateral
and such other reports in connection with the Collateral as the Agent may
request, all in reasonable detail.
Section 6. As to Equipment. The Grantor shall:
(a) Keep the Equipment (other than Equipment sold in accordance with
Section 8.02 of the Credit Agreement) at the places specified in Section
4(a) hereof and deliver written notice to the Agent at least 30 days prior
to establishing any other location at which it reasonably expects to
maintain Equipment in which jurisdiction all action required by Section 5
hereof shall have been taken with respect to all such Equipment.
(b) Maintain or cause to be maintained in good repair, working order
and condition, excepting ordinary wear and tear and damage due to casualty,
all of the Equipment, and make or cause to be made all appropriate repairs,
renewals and replacements thereof, to the extent not obsolete and
consistent with past practice of the Grantor, as quickly as practicable
after the occurrence of any loss or damage thereto which are necessary or
desirable to such end. The Grantor shall promptly furnish to the Agent a
statement respecting any material loss or damage as a result of a single
occurrence to any of the Equipment which has an aggregate fair market value
exceeding $250,000.
(c) Maintain the same or substantially the same insurance with
respect to its properties as Borrower may be required to maintain under
Section 7.05 of the Credit Agreement with respect to its properties and to
comply with the terms thereof.
Section 7. As to the Pledged Collateral.
(a) So long as no Event of Default shall have occurred and be
continuing:
(i) The Grantor and not the Agent shall be entitled to
exercise any and all voting and other rights of consent or approval
pertaining to the Pledged Collateral or any part thereof for any
purpose not inconsistent with the terms of this Agreement or the
Credit Agreement; provided, however, that the Grantor shall not
exercise or refrain from exercising any such right without the consent
of the Agent if such action or inaction would have a material adverse
effect on the value of the Pledged Collateral or the benefits to the
Agent, the Lenders and the Issuing Banks including, without
limitation, the validity, priority or perfection of the security
interest granted hereby or the remedies of the Agent hereunder.
(ii) The Grantor and not the Agent shall be entitled to
receive and retain any and all dividends and interest paid in respect
of the Pledged Collateral; provided, however, that any and all
(A) dividends and interest paid or payable other
than in cash in respect of, and instruments and other property
received, receivable or otherwise distributed in respect of, or
in exchange for, any Pledged Collateral,
(B) dividends and other distributions paid or
payable in cash in respect of any Pledged Collateral consisting
of stock of any Subsidiary of the Grantor and dividends and other
distributions paid or payable in cash in respect of any other
Pledged Collateral in connection with a partial or total
liquidation or dissolution or in connection with a reduction of
capital, capital,surplus or paid-in-surplus, and
(C) cash paid, payable or otherwise distributed
in respect of principal of, or in redemption of, or in exchange
for, any Pledged Collateral,
shall forthwith be delivered to the Agent, in the case of (A)
above, to hold as Pledged Collateral and shall, if received by the
Grantor, be received in trust for the benefit of the Agent, the
Lenders and the Issuing Banks, be segregated from the other property
or funds of the Grantor, and be forthwith delivered to the Agent, as
Pledged Collateral in the same form as so received (with any necessary
indorsement) and, in the case of (B) and (C) above, to the extent
required under the terms of the Credit Agreement, shall forthwith be
delivered to the Agent to be applied to the Guaranteed Obligations in
such order as provided in subsection 2.06(b) of the Credit Agreement.
(iii) The Agent shall promptly execute and deliver (or
cause to be executed and delivered) to the Grantor all such proxies
and other instruments as the Grantor may reasonably request for the
purpose of enabling the Grantor to exercise the voting and other
rights which it is entitled to exercise pursuant to paragraph (i)
above and to receive the dividends or interest payments which it is
authorized to receive and retain pursuant to paragraph (ii) above.
(b) Upon the occurrence and during the continuance of an Event of
Default and at the Agent's option:
(i) All rights of the Grantor to exercise the voting and
other rights of consent or approval which it would otherwise be
entitled to exercise pursuant to Section 8(a)(i) hereof and to receive
the dividends and interest payments which it would otherwise be
authorized to receive and retain pursuant to Section 8(a)(ii) hereof
shall cease, and all such rights shall thereupon become vested in the
Agent, who shall thereupon have the sole right to exercise such voting
and other rights of consent or approval and to receive and hold as
Pledged Collateral such dividends and interest payments.
(ii) All dividends and interest payments which are
received by the Grantor contrary to the provisions of paragraph (i) of
this Section 8(b) hereof shall be received in trust for the benefit of
the Agent, the Lenders and the Issuing Banks and shall be segregated
from other funds of the Grantor and shall be forthwith paid over to
the Agent as Pledged Collateral in the same form as so received (with
any necessary indorsement).
Section 8. Additional Shares. The Grantor agrees that it will (i) cause
each issuer of the Pledged Shares subject to its control not to issue any stock
or other securities in addition to or in substitution for the Pledged Shares
issued by such issuer, except to the Grantor or as otherwise permitted under the
Credit Agreement, and (ii) pledge hereunder, immediately upon its acquisition
(directly or indirectly) thereof, any and all additional shares of stock or
other securities of each issuer of the Pledged Shares. The Grantor hereby
authorizes the Agent to modify this Agreement by amending Annex I to include
such additional shares or other securities.
Section 9. Payment of Taxes and Claims. The Grantor shall pay (i) all
taxes, assessments and other charges of any Governmental Authority imposed upon
it or on any of the Collateral before any penalty or interest accrues thereon,
and (ii) all claims (including, without limitation, claims for labor, services,
materials and supplies) for sums materially adversely affecting the Collateral,
which have become due and payable and which by law have or may become a lien or
other encumbrance upon any of the Collateral prior to the time when any penalty
or fine shall be incurred with respect thereto; provided that no such taxes,
assessments and charges of any such governmental authority referred to in clause
(i) above or claims referred to in clause (ii) above need to be paid if being
contested in good faith by appropriate proceedings promptly instituted and
diligently conducted and enforcement thereof is stayed and if a reserve or other
appropriate provision required in conformity with GAAP shall have been made
therefor.
Section 10. The Agent Appointed Attorney-in-Fact. The Grantor hereby
irrevocably appoints the Agent the Grantor's attorney-in-fact, with full
authority in the place and stead of the Grantor and in the name of the Grantor
or otherwise, from time to time in the Agent's discretion, to take, upon the
occurrence and during the continuance of an Event of Default, any action and to
execute any instrument which the Agent may deem necessary or advisable to
accomplish the purposes of this Agreement (subject to the rights of the Grantor
under Section 7 hereof), including, without limitation:
(a) to obtain and adjust insurance required to be paid to the Agent
pursuant to Section 6(c) hereof,
(i) to ask, demand, collect, sue for, recover, compromise,
receive and give acquittance and receipts for moneys due and to become
due under or in respect of any of the Collateral,
(ii) to receive, indorse, and collect any drafts or other
instruments, documents and chattel paper, in connection with clause
(i) or (ii) above,
(iii) to sell or assign any Account upon such terms, for such
amount and at such time or times as Agent deems advisable, to settle,
adjust, compromise, extend or renew any Account or to discharge and
release any Account,
(iv) to file any claims or take any action or institute any
proceedings which the Agent may deem necessary or desirable for the
collection of any of the Collateral or otherwise to enforce the rights
of the Agent with respect to any of the Collateral, and
(v) to receive, indorse and collect all instruments made
payable to the Grantor representing any dividend, interest payment or
other distribution in respect of the Pledged Collateral or any part
thereof and to give full discharge for the same.
Nothing set forth in this Section 10 and no exercise by the Agent of the
rights and powers granted in this Section 10 shall limit or impair the Grantor's
rights under Section 7 hereof. The Grantor hereby ratifies all that said
attorneys shall lawfully do or cause to be done by virtue hereof. All powers,
authorizations and agencies contained in this Agreement are coupled with an
interest and shall be irrevocable until the Obligations are paid in full and the
commitments of the Lenders to extend credit under the Credit Agreement are
terminated.
Section 11. The Agent May Perform. If the Grantor fails to perform any
agreement contained herein, the Agent, upon written notice to the Grantor if
practicable, may itself perform, or cause performance of, such agreement, and
the expenses of the Agent incurred in connection therewith shall be payable by
the Grantor under Section 15 hereof.
Section 12. The Agent's Duties. The powers conferred on the Agent
hereunder are solely to protect its interest in the Collateral and shall not
impose any duty upon any of them, in the absence of willful misconduct or gross
negligence, to exercise any such powers. Except for the safe custody of any
Collateral in its possession and the accounting for moneys actually received by
it hereunder, the Agent shall have no duty as to any Collateral. The Agent
shall be deemed to have exercised reasonable care in the custody and
preservation of the Collateral in its possession if the Collateral is accorded
treatment substantially equal to that which the Agent accords its own property,
it being understood that the Agent shall be under no obligation to (i) ascertain
or take action with respect to calls, conversions, exchanges, maturities,
tenders or other matters relative to any Pledged Collateral, whether or not the
Agent has or is deemed to have knowledge of such matters, or (ii) take any
necessary steps to preserve rights against prior parties or any other rights
pertaining to any Collateral, but may do so at its option, and all reasonable
expenses incurred in connection therewith shall be for the sole account of the
Grantor and shall be added to the Guaranteed Obligations.
Section 13. Remedies. If any Event of Default shall have occurred and be
continuing:
(a) The Agent may exercise in respect of the Collateral, in addition
to other rights and remedies provided for herein or otherwise available to
it, all the rights and remedies of a secured party upon default under the
Uniform Commercial Code as in effect from time to time in the State of New
York (the "Code") (whether or not the Code applies to the affected
Collateral) and also may (i) require the Grantor to, and the Grantor hereby
agrees that it will at its expense and upon request of the Agent forthwith,
assemble all or any part of the Collateral as directed by the Agent and
make it available to the Agent at a place to be designated by the Agent
which is reasonably convenient to both parties and (ii) without notice
except as specified below, sell, lease, assign, grant an option or options
to purchase or otherwise dispose of the Collateral or any part thereof in
one or more parcels at public or private sale, at any exchange, broker's
board or at any of the Agent's offices or elsewhere, for cash, on credit or
for future delivery, and upon such other terms as may be commercially
reasonable. The Agent may be the purchaser of any or all of the Collateral
so sold at any public sale (or, if the Collateral is of a type customarily
sold in a recognized market or is of a type which is the subject of widely
distributed standard price quotations, at any private sale) and thereafter
hold the same, absolutely, free from any right or claim of whatsoever kind.
The Agent is authorized, at any such sale, if it deems it advisable so to
do, to restrict the prospective bidders or purchasers of any of the Pledged
Collateral to persons who will represent and agree that they are purchasing
for their own account for investment, and not with a view to the
distribution or sale of any Pledged Collateral, and to take such other
actions as it may deem appropriate to exempt the offer and sale of the
Collateral from any registration requirements of state or federal
securities laws (including, if it deems it appropriate, actions to comply
with Regulation D of the Securities and Exchange Commission under the
Securities Act of 1933, as from time to time amended (the "Securities
Act")). To the extent permitted by law, the Grantor hereby specifically
waives all rights of redemption, stay or appraisal which it has or may have
under any rule of law or statute now existing or hereafter in force. The
Grantor agrees that, to the extent notice of sale shall be required by law,
at least ten days' written notice to the Grantor of the time and place of
any public sale or the time after which any private sale is to be made
shall constitute reasonable notification. The Agent shall not be obligated
to make any sale of Collateral regardless of notice of sale having been
given. The Agent may adjourn any public or private sale from time to time
by announcement at the time and place fixed therefor, and such sale may,
without further notice, be made at the time and place to which it was so
adjourned. In case of any sale of all or any part of the Collateral on
credit or for future delivery, the Collateral so sold may be retained by
the Agent until the selling price is paid by the purchaser thereof, but the
Agent shall not incur any liability in case of the failure of such
purchaser to take up and pay for the Collateral so sold and, in case of any
such failure, such Collateral may again be sold upon like notice. The
Agent instead of exercising the power of sale herein conferred upon it, may
proceed by a suit or suits at law or in equity to foreclose the security
interests herein granted and sell the Collateral, or any portion thereof,
under a judgment or decree of a court or courts of competent jurisdiction.
(b) Any cash held by the Agent as Collateral and all cash proceeds
received by the Agent in respect of any sale of, collection from, or other
realization upon all or any part of the Collateral may, in the discretion
of the Agent, be held by the Agent as Collateral for, and/or then or at any
time thereafter applied against (after payment of any amounts payable to
the Agent pursuant to Section 16 hereof) in whole or in part by the Agent,
for the benefit of the Agent, the Lenders and the Issuing Banks, all or any
part of the Guaranteed Obligations. Any surplus of such cash or cash
proceeds held by the Agent and remaining after payment in full of all the
Guaranteed Obligations under this Agreement and the termination of the
commitments of the Lenders to extend credit under the Credit Agreement
shall be promptly paid over to the Grantor or to whomsoever may be lawfully
entitled to receive such surplus.
Section 14. Registration Rights.
(a) If the Agent shall determine to exercise its right to sell all or
any of the Pledged Collateral pursuant to Section 13 hereof, the Grantor
agrees that, upon request of the Agent, the Grantor will, at its own
expense:
(i) execute and deliver, and cause each issuer of the Pledged
Collateral which is a Subsidiary contemplated to be sold and the directors
and officers thereof to execute and deliver, all such instruments and
documents, and do or cause to be done all such other acts and things, as
may be necessary or, in the opinion of the Agent, advisable to register
such Pledged Collateral under the provisions of the Securities Act, and to
cause the registration statement relating thereto to become effective and
to remain effective for such period as prospectuses are required by law to
be furnished, and to make all amendments and supplements thereto and to the
related prospectus which, in the opinion of the Agent, are necessary or
advisable, all in conformity with the requirements of the Securities Act
and the rules and regulations of the Securities and Exchange Commission
applicable thereto;
(ii) use its best efforts to qualify the Pledged Collateral under the
state securities or "Blue Sky" laws and to obtain all necessary approvals
of all Governmental Authorities for the sale of the Pledged Collateral, as
requested by the Agent;
(iii) cause each such issuer to make available to its security holders,
as soon as practicable, an earnings statement which will satisfy the
provisions of Section 10 of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be
necessary to make such sale of the Pledged Collateral or any part thereof
valid and binding and in compliance with applicable law.
(b) Determination by the Agent to exercise its right to sell any or
all of the Pledged Collateral pursuant to Section 13 hereof without making
a request of the Grantor pursuant to Section 14(a) hereof shall not by the
sole fact of such sale be deemed to be commercially unreasonable.
Section 15. Expenses. The Grantor shall upon written demand pay to the
Agent the amount of any and all expenses, including the fees and disbursements
of its counsel and of any experts and agents, as provided in Section 12.03 of
the Credit Agreement.
Section 16. Amendments, Etc. No amendment or waiver of any provision of
this Agreement nor consent to any departure by the Grantor herefrom shall in any
event be effective unless the same shall be in writing and signed by the party
to be charged therewith, and they such waiver or consent shall be effective only
in the specific instance and for the specific purpose for which given.
Section 17. Notices. All notices and other
communications provided for hereunder shall be given in the manner set forth in
the Credit Agreement and to the address first above written or, as to each
party, at such other address as may be designated by such party in a written
notice to the other party.
Section 18. Continuing Security Interest; Termination. (a) This
Agreement shall create a continuing security interest in the Collateral and
shall (i) remain in full force and effect until payment in full of the
Guaranteed Obligations, the termination of the commitments of the Lenders to
extend credit under the Credit Agreement and the termination of the Credit
Agreement, (ii) be binding upon the Grantor, its successors and assigns and
(iii) except to the extent that the rights of any transferor or assignor are
limited by Section 12.01 (concerning assignments) of the Credit Agreement,
inure, together with the rights and remedies of the Agent hereunder, to the
benefit of the Agent, the Lenders and the Issuing Banks, subject to the terms
and conditions of the Credit Agreement. Without limiting the generality of the
foregoing clause (iii), any Lender may assign or otherwise transfer any interest
in any Loan owing to such Lender to any other Person, and such other Person
shall thereupon become vested with all the benefits in respect thereof granted
to the Agent herein or otherwise, subject, however, to the provisions of Section
12.01 (concerning assignments) of the Credit Agreement. Nothing set forth
herein or in any other Loan Document is intended or shall be construed to give
the Grantor's successors and assigns any right, remedy or claim under, to or in
respect of this Agreement, any other Loan Document or any Collateral. The
Grantor's successors and assigns shall include, without limitation, a receiver,
trustee or debtor-in-possession thereof or therefor.
(b) Upon the payment in full of the Guaranteed Obligations, the
termination of the commitments of the Lenders to extend credit under the Credit
Agreement and the termination of the Credit Agreement, the security interest
granted hereby shall terminate and all rights to the Collateral shall revert to
the Grantor. Upon any such termination, the Agent shall promptly return to the
Grantor, at the Grantor's expense, such of the Collateral held by the Agent as
shall not have been sold or otherwise applied pursuant to the terms hereof. The
Agent will, at the Grantor's expense, execute and deliver to the Grantor such
other documents as the Grantor shall reasonably request to evidence such
termination.
Section 19. Applicable Law; Severability. This Agreement shall be
construed in all respects in accordance with, and governed by, the laws of the
State of New York. Whenever possible, each provision of this Agreement shall be
interpreted in such a manner as to be effective and valid under applicable law,
but if any provision of this Agreement shall be prohibited by or invalid under
applicable law, such provision shall be ineffective only to the extent of such
prohibition or invalidity, without invalidating the remainder of such provisions
or the remaining provisions of this Agreement.
Section 20. Consent to Jurisdiction and Service of Process; Waiver of Jury
Trial. ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST THE GRANTOR WITH RESPECT TO
THIS AGREEMENT MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT
JURISDICTION IN THE STATE OF NEW YORK, AND BY EXECUTION AND DELIVERY OF THIS
AGREEMENT, THE GRANTOR ACCEPTS, FOR ITSELF IN AND IN CONNECTION WITH ITS
PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE NONEXCLUSIVE JURISDICTION OF THE
AFORESAID COURTS, AND IRREVOCABLY AGREES TO BE BOUND BY ANY FINAL JUDGMENT
RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT FROM WHICH NO APPEAL HAS BEEN
TAKEN OR IS AVAILABLE. THE GRANTOR IRREVOCABLY CONSENTS TO THE SERVICE OF
PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY
THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID,
TO ITS NOTICE ADDRESS SPECIFIED ON THE FIRST PAGE HEREOF, SUCH SERVICE TO BECOME
EFFECTIVE TEN (10) DAYS AFTER SUCH MAILING. EACH OF THE GRANTOR AND, BY
ACCEPTANCE HEREOF, THE AGENT AND THE LENDERS, IRREVOCABLY WAIVES (A) TRIAL BY
JURY IN ANY ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT, AND (B) ANY
OBJECTION (INCLUDING WITHOUT LIMITATION, ANY OBJECTION OF THE LAYING OF VENUE OR
BASED ON THE GROUNDS OF FORUM NON CONVENIENS) WHICH IT MAY NOW OR HEREAFTER HAVE
TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT
IN ANY JURISDICTION SET FORTH ABOVE. NOTHING HEREIN SHALL AFFECT THE RIGHT TO
SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
IN WITNESS WHEREOF, the Grantor has caused this Agreement to be duly
executed and delivered by its officer thereunto duly authorized as of the day
first above written.
ANNTAYLOR STORES CORPORATION
By:_________________________
Name:_______________________
Title:______________________
Agreed and accepted to as of
the date first above written:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Agent
By: _
Name: _
Title: _
ANNEX I-A
PLEDGED SHARES
Stock
Class of Certificate No. of
Issuer Stock No. Shares
AnnTaylor, Inc. Common 2 1
ANNEX I-B
PLEDGED DEBT
NONE
ANNEX II
LOCATIONS OF EQUIPMENT
142 West 57th Street
New York, NY 10019
ANNEX III
UCC FILINGS
Jurisdiction Filing Office
New York Secretary of State
New York New York County
EXHIBIT 6.01(d)(i)
FORM OF COMPLIANCE CERTIFICATE
This Compliance Certificate is delivered to you pursuant to Section
6.01(d)(i) of the Amended and Restated Credit Agreement, dated as of September
29, 1995, as amended, supplemented or modified from time to time (the "Credit
Agreement"), among AnnTaylor, Inc. (the "Borrower"), Bank of America National
Trust and Savings Association and Fleet Bank, National Association, as
Co-Agents, the financial institutions from time to time party thereto as lenders
(the "Lenders"), BA Securities, Inc., as Arranger, and Bank of America National
Trust and Savings Association, as agent for the Lenders (in such capacity, the
"Agent"). Terms defined in the Credit Agreement and not otherwise defined
herein are used herein with the meanings so defined.
1. I am the duly elected, qualified and acting [Chief Financial Officer]
[Vice President - Finance] of the Borrower.
2. I have reviewed and are familiar with the contents of this
Certificate. I am providing this Certificate solely in my capacity as officer
of the Borrower. The matters set forth herein are true to the best of my
knowledge after diligent inquiry, but I express no personal opinion as to any
conclusions of law or other legal matters.
3. I have reviewed the terms of the Credit Agreement and the principal
Loan Documents referred to in Section 6.01(d) of the Credit Agreement and have
made or caused to be made under my supervision, a review in reasonable detail of
the transactions and condition of the Borrower during the accounting period
covered by the financial statements attached hereto as Attachment 1 (the
"Financial Statements"). Such review did not disclose the existence during or
at the end of the accounting period covered by the Financial Statements, and I
have no knowledge of the existence, as of the date of this Certificate, of any
condition or event which constitutes an Event of Default or a Potential Event of
Default [, except as set forth below].
4. Attached hereto as Attachment 2 are the computations showing
compliance with the covenants specified therein.
IN WITNESS WHEREOF, I execute this Certificate this _____ day of
, 199__.
ANNTAYLOR, INC.
By: _
Title: _
Attachment
2
to Exhibit 6.01
The information described herein is as of , 199_,
and pertains to the period from , 19_ to ________________ __,
19__.
I. Negative Covenants
A. Indebtedness (Section 8.01)
Section Amount
8.01(e) $__________
8.01(m) $__________
B. Sales (Section 8.02(a))
Section Amount
8.02(a)(ii) $__________
8.02(a)(iii) $__________
8.02(a)(iv) $__________
C. Investments (Section 8.03)
Section Amount
8.03(d) $__________
8.03(e) $__________
8.03(i)(i) $__________
8.03(i)(ii) $__________
D. Restricted Payments (Section 8.05)
Section Amount
8.05(b)(i) $__________
8.05(b)(ii) $__________
8.05(b)(iii) $__________
II Financial Covenants
A. Minimum Net Worth (Section 9.01)
Net Worth on the last day of
the period covered by this Certificate $_____
B. Funded Debt to Total Capitalization
(Section 9.02)
1. Funded Debt on the last day of the
period covered by this Certificate $_____
2. a. Total Capitalization on the
last day of the period covered
by this Certificate $_____
b. expenses related to payments
under Section 8.05(b)(iii) $_____
3. Sum of items a. and b. $_______
4. Ratio of line 1 to line 3 _____:1
5. Funded Debt to Total Capitalization
for previous fiscal quarter _____:1
C. Fixed Charge Coverage Ratio (Section 9.03)
1. EBITDA for the twelve-month period
ending on the last day covered by this
Certificate or, if it has been less
than twelve months since the Initial
Funding Date, such lesser period (the
"Prior Period") $_____
2. a. Capital Expenditures (excluding
Capital Expenditures in respect
of the Distribution Center) paid
or accrued during the Prior Period $_____
b. Scheduled payments of principal made
during the Prior Period excluding
any payment made upon termination
of a Receivables Transaction $_____
c. Cash Interest Expense during the
Prior Period
d. Tax Expense during the Prior Period $_____
3. Sum of items a., b., c. and d. $_____
4. Ratio of line 1 to line 3 _____:1
EXHIBIT 6.01(d)(ii)
FORM OF PRICING RATIO CERTIFICATE
Pursuant to Section 6.01(d)(ii) of the Amended and Restated Credit
Agreement, dated as of September 29, 1995, among AnnTaylor, Inc., the several
banks and other financial institutions from time to time parties thereto as
Lenders, Bank of America National Trust and Savings Association, in its capacity
as Agent for such Lenders, BA Securities, Inc. as Arranger and Bank of America
National Trust and Savings Association and Fleet Bank, National Association as
Co-Agents, the undersigned hereby certifies that set forth below is the
calculation of the Pricing Ratio in effect for the fiscal quarter following the
fiscal quarter in respect of which this Certificate is issued:
(Four fiscal quarters ended__________________)
Net Income, plus $ _
amortization of intangibles
and depreciation, plus _
Interest Expense, plus _
income tax expense, plus _
extraordinary losses, minus _
extraordinary gains (net of taxes) _
_
EBITDA $ _
Funded Debt
at end of last fiscal quarter $ _
Pricing = Funded Debt $ = _
Ratio EBITDA $
IN WITNESS WHEREOF, the undersigned has executed this Certificate as
of the date set forth below.
Dated: _
ANNTAYLOR, INC.
By: _
Title:
EXHIBIT 12.01
FORM OF
ASSIGNMENT AND ACCEPTANCE
Dated _____________, 19__
Reference is made to the Amended and Restated Credit Agreement dated as of
September 29, 1995 (as amended, supplemented or modified from time to time, the
"Credit Agreement") among AnnTaylor, Inc., a Delaware corporation ("Borrower"),
Bank of America National Trust and Savings Association and Fleet Bank, National
Association, as Co-Agents, the Lenders (as defined in the Credit Agreement),
Bank of America National Trust and Savings Association ("Bank of America"), as
Agent for the Lenders (the "Agent"), and BA Securities, Inc., as Arranger.
Unless otherwise defined herein, terms defined in the Credit Agreement are used
herein with the same meanings.
___________________ (the "Assignor") and __________________ (the
"Assignee"), agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, WITHOUT RECOURSE, a
______%1 interest in and to all of the Assignor's rights and obligations under
the Credit Agreement in respect of the Assigned Facility described in Schedule I
hereto as of the Effective Date (as defined below) including, without
limitation, such percentage interest in the Assignor's Commitment as in effect
on the Effective Date, the Loans owing to the Assignor on the Effective Date and
the Assignor's interest in Letter of Credit Obligations on the Effective Date,
in each case to the extent included in the Assigned Facility described in
Schedule I.
2. The Assignor (i) represents and warrants that, as of the date hereof,
its Revolving Loan Commitment and Term Loan Commitment (without giving effect to
assignments thereof which have not yet become effective) are $__________ and
$__________, respectively, and the aggregate outstanding principal amount of
Revolving Loans and Term Loans owing to it (without giving effect to assignments
thereof which have not yet become effective) are $__________ and $__________,
respectively; (ii) represents and warrants that it is the legal and beneficial
owner of the interest being assigned by it hereunder and that such interest is
free and clear of any adverse claim; (iii) makes no representation or warranty
and assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or any of the
Loan Documents or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement or any of the Loan
Documents or any other instrument or document furnished pursuant thereto; and
(iv) makes no representation or warranty and assumes no responsibility with
respect to the financial condition of Borrower or the performance or observance
by Borrower of any of its obligations under the Credit Agreement or any of the
Loan Documents or any other instrument or document furnished pursuant thereto.
3. The Assignee (i) confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements referred to in
Section 6.01 thereof and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Acceptance; (ii) agrees that it will, independently and without
reliance upon the Agent, the Arranger, the Assignor, the Issuing Bank or any
other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Credit Agreement; (iii) appoints and authorizes the
Agent to take such actions on its behalf and to exercise such powers under the
Loan Documents as are delegated to the Agent by the terms thereof, together with
such powers as are reasonably incidental thereto; (iv) agrees that it will
become a party to the Credit Agreement on the Effective Date and perform in
accordance with their terms all of the obligations which by the terms of the
Credit Agreement are required to be performed by it as a Lender; and (v)
specifies as its address for notices the office set forth beneath its name on
the signature pages hereof.
4. The effective date of this Agreement and Acceptance shall be
____________ (the "Effective Date").2 Following the execution of this
Assignment and Acceptance and receipt of Borrower's [and the Issuing Bank's]
consent thereto, it will be delivered to the Agent for acceptance and recording
by the Agent.
5. Upon such acceptance, consent and recording, as of the Effective Date,
(i) the Assignee shall be a party to the Credit Agreement and, to the extent
provided in this Assignment and Acceptance, have the rights and obligations of a
Lender thereunder and under the Loan Documents and (ii) the Assignor shall, to
the extent provided in this Assignment and Acceptance, relinquish its rights and
be released from its obligations under the Credit Agreement.
6. Upon such acceptance, consent and recording, from and after the
Effective Date, the Agent shall make all payments under the Credit Agreement in
respect of the interest assigned hereby (including, without limitation, all
payments of principal, interest and commitment fees with respect thereto) to the
Assignee. The Assignor and Assignee shall make all appropriate adjustments in
payments under the Credit Agreement for periods prior to the Effective Date
directly between themselves.
7. This Assignment and Acceptance shall be governed by, and construed in
accordance with, the laws of the State of New York.
[NAME OF ASSIGNOR]
By __________________________
Name:
Title:
After the Effective Date:
Commitment: $______
Outstanding Loans: $______
[Pro Rata Revolving
Loan Share of Letter
of Credit Obligations] $______
[NAME OF ASSIGNEE]
By __________________________
Name:
Title:
Notice Address:
After the Effective Date:
Commitment: $______
Outstanding Loans: $______
[Pro Rata Revolving
Loan Share of Letter
of Credit Obligations] $______
Consented to this ___ day of
____________, 19 __
ANNTAYLOR, INC.
By ________________________
Name:
Title:
[[NAME OF ISSUING BANK]
By ________________________
Name:
Title:]
Accepted this ___ day of
_______________, 19 _
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
as Agent
By ________________________
Name:
Title:
Schedule I
to
Assignment and
Acceptance
Assigned Facilities:
(i) Term Loan Commitment Assigned: $_____________
(ii) Revolving Loan Commitment Assigned: $_____________
_______________________________
1 Specify percentage in no more than 4 decimal points.
2 Such date shall be at least five Business Days after the execution of
this Assignment and Acceptance.
098888\0048\01864\959NC8U9.SCD 10/13/95 2:25PM
098888\0048\01864\959NC8U9.SCD 10/13/95 2:25PM
EXECUTION COPY
BORROWER PLEDGE AGREEMENT
THIS AMENDED AND RESTATED SECURITY AND PLEDGE AGREEMENT (as
such agreement may be amended, supplemented or otherwise modified
from time to time, this "Agreement"), dated as of September 29,
1995 is made by ANNTAYLOR, INC., a Delaware corporation, with its
principal place of business located at 142 West 57th Street, New
York, New York 10019 (the "Grantor"), in favor of BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION, with an office located at
1455 Market Street, San Francisco, California 94103, in its
capacity as Agent under the "Credit Agreement" (as defined below)
(the "Agent").
R E C I T A L S :
A. The Grantor, the Agent, BA Securities, Inc., as
Arranger, Bank of America National Trust and Savings Association
and Fleet Bank, National Association, as Co-Agents, and certain
financial institutions currently and in the future to be the
parties to the Credit Agreement (as defined below) (such
financial institutions being collectively referred to as the
"Lenders"), have entered into a certain Amended and Restated
Credit Agreement, dated as of September 29, 1995 (as such
agreement may be amended, supplemented or otherwise modified from
time to time, the "Credit Agreement"; the capitalized terms not
otherwise defined herein are being used as defined in the Credit
Agreement);
B. The Grantor and the Agent are parties to the Pledge
Agreement, dated as of July 29, 1994 (the "Existing Pledge
Agreement");
C. It is a condition precedent to the effectiveness of the
Credit Agreement and to the making of the Loans by the Lenders
and the issuing of the Letters of Credit by any Issuing Bank that
the Existing Pledge Agreement shall be amended and restated as
set forth herein;
NOW, THEREFORE, in consideration of the above premises and
in order to induce the Lenders to make the Loans and each Issuing
Bank to issue the Letters of Credit under the Credit Agreement,
the Grantor hereby agrees with the Agent for its benefit and for
the benefit of the Lenders and the Issuing Banks, and the Agent,
by acceptance hereof, hereby agrees, that the Existing Pledge
Agreement is hereby amended and restated in its entirety as
follows:
Section 1. Grant of Security. To secure the prompt and
complete payment, observance and performance when due (whether at
the stated maturity, by acceleration or otherwise) of all the
Obligations, the Grantor hereby assigns and pledges to the Agent,
and hereby grants to the Agent, for its benefit and the benefit
of the Lenders and the Issuing Banks, a security interest in all
of the Grantor's right, title and interest in and to the
following, whether now owned or existing or hereafter arising or
acquired and wheresoever located (collectively, the
"Collateral"):
EQUIPMENT: All machinery and equipment, all manufacturing,
distribution, selling, data processing and office equipment, all
furniture, furnishings, appliances, fixtures and trade fixtures,
tools, tooling, molds, dies, vehicles, vessels, aircraft and all
other goods of every type and description (other than
"inventory", as such term is defined in the Uniform Commercial
Code in effect on the date hereof in the State of New York (the
"UCC")), in each instance whether now owned or hereafter acquired
by the Grantor and wherever located (collectively, "Equipment");
GENERAL INTANGIBLES: All rights, interests, choses in
action, causes of action, claims and all other intangible
property of the Grantor of every kind and nature (other than
"accounts", as such term is defined in the UCC), in each instance
whether now owned or hereafter acquired by the Grantor,
including, without limitation, all corporate and other business
records; all loans, royalties, and other obligations receivable;
all inventions, designs, patents, patent applications, service
marks, trade names and trademarks (including any applications for
the foregoing and whether or not registered) and the goodwill of
the Grantor's business connected with and symbolized by such
trademarks, trade secrets, computer programs, software, printouts
and other computer materials, goodwill, registrations, U.S.
registered copyrights, licenses relating to trademarks and U.S.
registered copyrights, franchises, customer lists, credit files,
correspondence and advertising materials; all customer and
supplier contracts, firm sale orders, rights under license and
franchise agreements, and other contracts and contract rights;
all interests in partnerships, joint ventures and other entities;
all tax refunds and tax refund claims; all right, title and
interest under leases, subleases, licenses and concessions and
other agreements relating to real or personal property; all pay
ments due or made to the Grantor in connection with any
requisition, confiscation, condemnation, seizure or forfeiture of
any property by any person or governmental authority; all deposit
accounts (general or special) with any bank or other financial
institution; all credits with and other claims against carriers
and shippers; all rights to indemnification; all reversionary
interests in pension and profit sharing plans and reversionary,
beneficial and residual interest in trusts; all proceeds of
insurance of which the Grantor is beneficiary; and all letters of
credit, guaranties, liens, security interests and other security
held by or granted to the Grantor; and all other intangible
property, whether or not similar to the foregoing, including,
without limitation, all "general intangibles", as such term is
defined in the UCC (in each instance, however and wherever
arising, collectively, "General Intangibles");
CHATTEL PAPER, INSTRUMENTS AND DOCUMENTS: All chattel
paper, all instruments (including, without limitation, (a) the
shares of stock described in Annex I-A hereto (the "Pledged
Shares") and all dividends, instruments and other property from
time to time distributed in respect thereof or in exchange
therefor, and (b) the notes and debt instruments described in
Annex I-B hereto (the "Pledged Debt") and all payments thereunder
and instruments and other property from time to time delivered in
respect thereof or in exchange therefor), and all bills of
lading, warehouse receipts and other documents of title and
documents, including, without limitation, all "chattel paper",
"instruments" and "documents", as such terms are defined in the
UCC, in each instance whether now owned or hereafter acquired by
the Grantor, other than any promissory note in an amount less
than $1,000,000 owing to the Grantor from a senior executive or
key employee of the Grantor (an "Excluded Note") (collectively,
"Chattel Paper, Instruments and Documents"); and
OTHER PROPERTY: All property or interests in property now
owned or hereafter acquired by the Grantor which now may be owned
or hereafter may come into the possession, custody or control of
the Agent, any of the Lenders, any Issuing Bank or any agent or
Affiliate of any of them in any way or for any purpose (whether
for safekeeping, deposit, custody, pledge, transmission,
collection or otherwise); and all rights and interests of the
Grantor, now existing or hereafter arising and however and
wherever arising, in respect of any and all (i) notes, drafts,
letters of credit, stocks, bonds, and debt and equity securities,
whether or not certificated, and warrants, options, puts and
calls and other rights to acquire or otherwise relating to the
same; (ii) money; (iii) proceeds of loans, including without
limitation, all the Loans made to the Grantor under the Credit
Agreement; and (iv) insurance proceeds and books and records
relating to any of the property covered by this Agreement
(collectively, "Other Property");
together, in each instance, with all accessions and additions
thereto, substitutions therefor, and replacements, proceeds and
products thereof; provided, however, that (x) Collateral shall
not include Receivables and (y) the foregoing grant of a security
interest shall not include a security interest in any lease and
any property subject to an enforceable lease which by its terms
expressly prohibits the right of the Grantor to grant a security
interest in such lease or property. The Borrower agrees to use
its best commercially reasonable efforts to ensure that no future
lease contains any restrictions on the Borrower's right to grant
a security interest in any equipment placed on the leased
premises.
Section 2. Grantor Remains Liable. Anything herein to the
contrary notwithstanding, (a) the Grantor shall remain liable
under the contracts and agreements included in the Collateral to
the extent set forth therein to perform its duties and
obligations thereunder to the same extent as if this Agreement
had not been executed, (b) the exercise by the Agent of any of
its rights hereunder shall not release the Grantor from any of
its duties or obligations under the contracts and agreements
included in the Collateral (except to the extent that such
exercise prevents the Grantor from satisfying such duties and
obligations), and (c) the Agent shall not have any obligation or
liability under the contracts and agreements included in the
Collateral by reason of this Agreement, nor shall the Agent be
obligated to perform any of the obligations or duties of the
Grantor thereunder, to make any payment, to make any inquiry as
to the nature or sufficiency of any payment received by the
Grantor or the sufficiency of any performance by any party under
any such contract or agreement or to take any action to collect
or enforce any claim for payment assigned hereunder.
Section 3. Delivery of Pledged Collateral. All
certificates, notes and other instruments representing or
evidencing the Pledged Shares or the Pledged Debt and all other
instruments now owned or at any time hereafter acquired by the
Grantor other than any Excluded Notes (collectively, the "Pledged
Collateral") shall be delivered to and held by or on behalf of
the Agent pursuant hereto (except as otherwise provided in the
last sentence of Section 4(f) hereof) and shall be in suitable
form for transfer by delivery, or shall be accompanied by duly
executed instruments of transfer or assignments in blank, all in
form and substance satisfactory to the Agent. Upon the
occurrence and during the continuance of an Event of Default, the
Agent shall have the right, at any time in its discretion and
without notice to the Grantor, to transfer to or to register in
the name of the Agent or any nominee of the Agent any or all of
the Pledged Collateral, subject only to the revocable rights
specified in Section 8 hereof. In addition, upon the occurrence
and during the continuance of an Event of Default, the Agent
shall have the right at any time to exchange certificates or
instruments representing or evidencing Pledged Collateral for
certificates or instruments of smaller or larger denominations.
Section 4. Representations and Warranties. The Grantor
represents and warrants as follows:
(a) As of the date of this Agreement, the locations
listed on Annex II constitute all locations at which
Equipment is located, except for Equipment temporarily in
transit. As of the date of this Agreement, the chief place
of business and chief executive office of the Grantor are
located at the address first specified above for the
Grantor.
(b) The Grantor is the legal and beneficial owner of
the Collateral free and clear of all liens, security
interests or other encumbrances, except as expressly
permitted by subsection 8.02(b) of the Credit Agreement.
For the past five years the business of the Grantor has been
conducted only by the following corporations and under the
following corporate names and not under any trade name or
other name:
1) AnnTaylor, Inc.
2) AnnTaylor Factory Stores
3) AnnTaylor Loft
4) AnnTaylor Studio
(c) The Grantor has exclusive possession and control
of the Equipment, except for (i) Equipment in the possession
and control of the Grantor's lessees and licensees under
written lease and license agreements entered into in the
ordinary course of business and consistent with past
practice and (ii) Equipment in transit with common or other
carriers.
(d) The Pledged Shares have been duly authorized and
validly issued and are fully paid and non-assessable. The
Pledged Debt of Grantor's Subsidiaries (if any), and, to the
best of the Grantor's knowledge, all other Pledged Debt, has
been duly authorized, issued and delivered, and is the
legal, valid, binding and enforceable obligation of the
issuers thereof.
(e) The Pledged Shares indicated on Annex I-A hereto
constitute all of the shares of stock held by the Grantor of
the respective issuers thereof. The Pledged Shares and the
Pledged Debt constitute all of the Pledged Collateral except
for Pledged Collateral consisting of checks and drafts
received in the ordinary course of business and with respect
to which the Agent has not at any time requested possession
and which are not a material portion of the Collateral under
this Agreement or the Trademark Assignment executed by
Grantor, taken as a whole (the "Personal Property
Collateral") either singly or in the aggregate.
(f) This Agreement creates a valid security interest
in the Collateral (other than the Pledged Collateral),
securing the payment of the Obligations, and all filings and
other actions necessary or desirable to perfect such
security interest under the Uniform Commercial Code as
enacted in each jurisdiction listed on Annex III hereto have
been duly taken or will be duly taken not later than five
Business Days after the date hereof. The pledge and
delivery of the Pledged Collateral pursuant to this
Agreement and all other filings and other actions taken by
the Grantor to perfect such security interest prior to the
date hereof, create a valid and perfected first priority
security interest in the Pledged Collateral, securing the
payment of the Obligations except for Pledged Collateral
consisting of checks and drafts received in the ordinary
course of business with respect to which the Agent has not
at any time requested possession and which are not a
material portion of the Personal Property Collateral either
singly or in the aggregate.
(g) Other than the filings with the United States
Patent and Trademark Office and filings under the UCC, no
authorization, approval or other action by, and no notice to
or filing with, any federal, state or local governmental
authority that have not already been taken or made and which
are in full force and effect, is required (i) for the pledge
by the Grantor of the Pledged Collateral or for the grant by
the Grantor of the security interest in the Collateral
granted hereby or for the execution, delivery or performance
of this Agreement by the Grantor, (ii) for the exercise by
the Agent of the voting or other rights provided in this
Agreement with respect to the Pledged Collateral or the
remedies in respect of the Pledged Collateral pursuant to
this Agreement (except as may be required in connection with
the disposition thereof by laws affecting the offering and
sale of securities generally), or (iii) for the exercise by
the Agent of any of its other rights or remedies hereunder.
Section 5. Further Assurances.
(a) The Grantor agrees that from time to time, at the
expense of the Grantor, the Grantor will promptly execute
and deliver all further instruments and documents, and take
all further action, that may be necessary or reasonably
desirable, or that the Agent may reasonably request, in
order to perfect and protect any security interest granted
or purported to be granted hereby or to enable the Agent to
exercise and enforce its rights and remedies hereunder with
respect to any Collateral; provided, however, that the
Grantor shall in no event be required to execute any
leasehold mortgage with respect to any lease. Without
limiting the generality of the foregoing, at the request of
the Agent, the Grantor shall: (i) if an Event of Default
shall have occurred and be continuing, mark conspicuously
each document included in the Collateral and, at the request
of the Agent made at any time, and whether or not an Event
of Default shall have occurred, mark each of its records
pertaining to the Collateral with a legend, in form and
substance satisfactory to the Agent, indicating that such
document or Collateral is subject to the security interest
granted hereby; and (ii) execute and file such financing or
continuation statements, or amendments thereto, and such
other instruments or notices, as may be necessary or
desirable, or as the Agent may reasonably request, in order
to perfect and preserve the security interests granted or
purported to be granted hereby.
(b) The Grantor hereby authorizes the Agent to file
one or more financing or continuation statements, and
amendments thereto, relative to all or any part of the
Collateral without the signature of the Grantor where
permitted by law. A carbon, photographic or other
reproduction of this Agreement or any financing statement
covering the Collateral or any part thereof shall be
sufficient as a financing statement where permitted by law.
(c) The Grantor shall furnish to the Agent from time
to time statements and schedules further identifying and
describing the Collateral and such other reports in
connection with the Collateral as the Agent may request, all
in reasonable detail.
Section 6. As to Equipment. The Grantor shall:
(a) Keep the Equipment (other than Equipment sold in
accordance with Section 8.02(a) of the Credit Agreement) at
the places specified in Section 4(a) hereof and deliver
written notice to the Agent at least 30 days prior to
establishing any other location at which it reasonably
expects to maintain Equipment in which jurisdiction all
action required by Section 5 hereof shall have been taken
with respect to all such Equipment.
(b) Maintain or cause to be maintained in good repair,
working order and condition, excepting ordinary wear and
tear and damage due to casualty, all of the Equipment, and
make or cause to be made all appropriate repairs, renewals
and replacements thereof, to the extent not obsolete and
consistent with past practice of the Grantor, as quickly as
practicable after the occurrence of any loss or damage
thereto which are necessary or desirable to such end. The
Grantor shall promptly furnish to the Agent a statement
respecting any material loss or damage as a result of a
single occurrence to any of the Equipment which has an
aggregate fair market value exceeding $250,000.
Section 7. As to the Pledged Collateral.
(a) So long as no Event of Default shall have occurred
and be continuing:
(i) The Grantor and not the Agent shall be
entitled to exercise any and all voting and other
rights of consent or approval pertaining to the Pledged
Collateral or any part thereof for any purpose not
inconsistent with the terms of this Agreement or the
Credit Agreement; provided, however, that the Grantor
shall not exercise or refrain from exercising any such
right without the consent of the Agent if such action
or inaction would have a material adverse effect on the
value of the Pledged Collateral or the benefits to the
Agent, the Lenders and the Issuing Banks including,
without limitation, the validity, priority or
perfection of the security interest granted hereby or
the remedies of the Agent hereunder.
(ii) The Grantor and not the Agent shall be
entitled to receive and retain any and all dividends
and interest paid in respect of the Pledged Collateral;
provided, however, that any and all
(A) dividends and interest paid or
payable other than in cash in respect of, and
instruments and other property received,
receivable or otherwise distributed in respect of,
or in exchange for, any Pledged Collateral,
(B) dividends and other
distributions paid or payable in cash in respect
of any Pledged Collateral consisting of stock of
any Subsidiary of the Grantor and dividends and
other distributions paid or payable in cash in
respect of any other Pledged Collateral in
connection with a partial or total liquidation or
dissolution or in connection with a reduction of
capital, capital surplus or paid-in-surplus, and
(C) cash paid, payable or
otherwise distributed in respect of principal of,
or in redemption of, or in exchange for, any
Pledged Collateral,
shall forthwith be delivered to the Agent, in the
case of (A) above, to hold as Pledged Collateral and
shall, if received by the Grantor, be received in trust
for the benefit of the Agent, the Lenders and the
Issuing Banks, be segregated from the other property or
funds of the Grantor, and be forthwith delivered to the
Agent, as Pledged Collateral in the same form as so
received (with any necessary indorsement) and, in the
case of (B) and (C) above, to the extent required under
the terms of the Credit Agreement, shall forthwith be
delivered to the Agent to be applied to the Obligations
in such order as provided in subsection 2.06(b) of the
Credit Agreement.
(iii) The Agent shall promptly execute and
deliver (or cause to be executed and delivered) to the
Grantor all such proxies and other instruments as the
Grantor may reasonably request for the purpose of
enabling the Grantor to exercise the voting and other
rights which it is entitled to exercise pursuant to
paragraph (i) above and to receive the dividends or
interest payments which it is authorized to receive and
retain pursuant to paragraph (ii) above.
(b) Upon the occurrence and during the continuance of
an Event of Default and at the Agent's option:
(i) All rights of the Grantor to exercise
the voting and other rights of consent or approval
which it would otherwise be entitled to exercise
pursuant to Section 8(a)(i) hereof and to receive the
dividends and interest payments which it would
otherwise be authorized to receive and retain pursuant
to Section 8(a)(ii) hereof shall cease, and all such
rights shall thereupon become vested in the Agent, who
shall thereupon have the sole right to exercise such
voting and other rights of consent or approval and to
receive and hold as Pledged Collateral such dividends
and interest payments.
(ii) All dividends and interest payments
which are received by the Grantor contrary to the
provisions of paragraph (i) of this Section 8(b) hereof
shall be received in trust for the benefit of the
Agent, the Lenders and the Issuing Banks and shall be
segregated from other funds of the Grantor and shall be
forthwith paid over to the Agent as Pledged Collateral
in the same form as so received (with any necessary
indorsement).
Section 8. Additional Shares. The Grantor agrees that it
will (i) cause each issuer of the Pledged Shares subject to its
control not to issue any stock or other securities in addition to
or in substitution for the Pledged Shares issued by such issuer,
except to the Grantor or as otherwise permitted under the Credit
Agreement, and (ii) pledge hereunder, immediately upon its
acquisition (directly or indirectly) thereof, any and all
additional shares of stock or other securities of each issuer of
the Pledged Shares. The Grantor hereby authorizes the Agent to
modify this Agreement by amending Annex I to include such
additional shares or other securities.
Section 9. The Agent Appointed Attorney-in-Fact. The
Grantor hereby irrevocably appoints the Agent the Grantor's
attorney-in-fact, with full authority in the place and stead of
the Grantor and in the name of the Grantor or otherwise, from
time to time in the Agent's discretion, to take, upon the
occurrence and during the continuance of an Event of Default, any
action and to execute any instrument which the Agent may deem
necessary or advisable to accomplish the purposes of this
Agreement (subject to the rights of the Grantor under Section 7
hereof), including, without limitation:
(i) to obtain and adjust insurance required
to be paid to the Agent pursuant to Section 7.05 of the
Credit Agreement,
(ii) to ask, demand, collect, sue for,
recover, compromise, receive and give acquittance and
receipts for moneys due and to become due under or in
respect of any of the Collateral,
(iii) to receive, indorse, and collect any
drafts or other instruments, documents and chattel
paper, in connection with clause (i) or (ii) above,
(iv) to file any claims or take any action or
institute any proceedings which the Agent may deem
necessary or desirable for the collection of any of the
Collateral or otherwise to enforce the rights of the
Agent with respect to any of the Collateral, and
(v) to receive, indorse and collect all
instruments made payable to the Grantor representing
any dividend, interest payment or other distribution in
respect of the Pledged Collateral or any part thereof
and to give full discharge for the same.
Nothing set forth in this Section 9 and no exercise by the
Agent of the rights and powers granted in this Section 9 shall
limit or impair the Grantor's rights under Section 7 hereof. The
Grantor hereby ratifies all that said attorneys shall lawfully do
or cause to be done by virtue hereof. All powers, authorizations
and agencies contained in this Agreement are coupled with an
interest and shall be irrevocable until the Obligations are paid
in full and the commitments of the Lenders to extend credit under
the Credit Agreement are terminated.
Section 10. The Agent May Perform. If the Grantor fails to
perform any agreement contained herein, the Agent, upon written
notice to the Grantor if practicable, may itself perform, or
cause performance of, such agreement, and the expenses of the
Agent incurred in connection therewith shall be payable by the
Grantor under Section 14 hereof.
Section 11. The Agent's Duties. The powers conferred on
the Agent hereunder are solely to protect its interest in the
Collateral and shall not impose any duty upon it, in the absence
of willful misconduct or gross negligence, to exercise any such
powers. Except for the safe custody of any Collateral in its
possession and the accounting for moneys actually received by it
hereunder, the Agent shall have no duty as to any Collateral.
The Agent shall be deemed to have exercised reasonable care in
the custody and preservation of the Collateral in its possession
if the Collateral is accorded treatment substantially equal to
that which the Agent accords its own property, it being
understood that the Agent shall be under no obligation to (i)
ascertain or take action with respect to calls, conversions,
exchanges, maturities, tenders or other matters relative to any
Pledged Collateral, whether or not the Agent has or is deemed to
have knowledge of such matters, or (ii) take any necessary steps
to preserve rights against prior parties or any other rights
pertaining to any Collateral, but may do so at its option, and
all reasonable expenses incurred in connection therewith shall be
for the sole account of the Grantor and shall be added to the
Obligations.
Section 12. Remedies. If any Event of Default shall have
occurred and be continuing:
(a) The Agent may exercise in respect of the
Collateral, in addition to other rights and remedies
provided for herein or otherwise available to it, all the
rights and remedies of a secured party upon default under
the Uniform Commercial Code as in effect from time to time
in the State of New York (the "Code") (whether or not the
Code applies to the affected Collateral) and also may (i)
require the Grantor to, and the Grantor hereby agrees that
it will at its expense and upon request of the Agent
forthwith, assemble all or any part of the Collateral as
directed by the Agent and make it available to the Agent at
a place to be designated by the Agent which is reasonably
convenient to both parties and (ii) without notice except as
specified below, sell, lease, assign, grant an option or
options to purchase or otherwise dispose of the Collateral
or any part thereof in one or more parcels at public or
private sale, at any exchange, broker's board or at any of
the Agent's offices or elsewhere, for cash, on credit or for
future delivery, and upon such other terms as may be
commercially reasonable. The Agent may be the purchaser of
any or all of the Collateral so sold at any public sale (or,
if the Collateral is of a type customarily sold in a
recognized market or is of a type which is the subject of
widely distributed standard price quotations, at any private
sale) and thereafter hold the same, absolutely, free from
any right or claim of whatsoever kind. The Agent is
authorized, at any such sale, if it deems it advisable so to
do, to restrict the prospective bidders or purchasers of any
of the Pledged Collateral to persons who will represent and
agree that they are purchasing for their own account for
investment, and not with a view to the distribution or sale
of any such Pledged Collateral and to take such other
actions as it may deem appropriate to exempt the offer and
sale of the Collateral from any registration requirements of
state or federal securities laws (including, if it deems it
appropriate, actions to comply with Regulation D of the
Securities and Exchange Commission under the Securities Act
of 1933, as from time to time amended (the "Securities
Act")). To the extent permitted by law, the Grantor hereby
specifically waives all rights of redemption, stay or
appraisal which it has or may have under any rule of law or
statute now existing or hereafter in force. The Grantor
agrees that, to the extent notice of sale shall be required
by law, at least ten days' written notice to the Grantor of
the time and place of any public sale or the time after
which any private sale is to be made shall constitute
reasonable notification. The Agent shall not be obligated
to make any sale of Collateral regardless of notice of sale
having been given. The Agent may adjourn any public or
private sale from time to time by announcement at the time
and place fixed therefor and such sale may, without further
notice, be made at the time and place to which it was so
adjourned. In case of any sale of all or any part of the
Collateral on credit or for future delivery, the Collateral
so sold may be retained by the Agent until the selling price
is paid by the purchaser thereof, but the Agent shall not
incur any liability in case of the failure of such purchaser
to take up and pay for the Collateral so sold and, in case
of any such failure, such Collateral may again be sold upon
like notice. The Agent instead of exercising the power of
sale herein conferred upon it, may proceed by a suit or
suits at law or in equity to foreclose the security
interests herein granted and sell the Collateral, or any
portion thereof, under a judgment or decree of a court or
courts of competent jurisdiction.
(b) Any cash held by the Agent as Collateral and all
cash proceeds received by the Agent in respect of any sale
of, collection from, or other realization upon all or any
part of the Collateral may, in the discretion of the Agent,
be held by the Agent as Collateral for, and/or then or at
any time thereafter applied against (after payment of any
amounts payable to the Agent pursuant to Section 15 hereof)
in whole or in part by the Agent, for the benefit of the
Agent, the Lenders and the Issuing Banks, all or any part of
the Obligations in such order as is provided in Section
2.06(b) of the Credit Agreement. Any surplus of such cash
or cash proceeds held by the Agent and remaining after
payment in full of all the Obligations under this Agreement
and the termination of the commitments of the Lenders to
extend credit under the Credit Agreement shall be promptly
paid over to the Grantor or to whomsoever may be lawfully
entitled to receive such surplus.
Section 13. Registration Rights.
(a) If the Agent shall determine to exercise its right
to sell all or any of the Pledged Collateral pursuant to
Section 12 hereof, the Grantor agrees that, upon request of
the Agent, the Grantor will, at its own expense:
(i) execute and deliver, and cause each
issuer of the Pledged Collateral which is a Subsidiary
contemplated to be sold and the directors and officers
thereof to execute and deliver, all such instruments
and documents, and do or cause to be done all such
other acts and things, as may be necessary or, in the
opinion of the Agent, advisable to register such
Pledged Collateral under the provisions of the
Securities Act, and to cause the registration statement
relating thereto to become effective and to remain
effective for such period as prospectuses are required
by law to be furnished, and to make all amendments and
supplements thereto and to the related prospectus
which, in the opinion of the Agent, are necessary or
advisable, all in conformity with the requirements of
the Securities Act and the rules and regulations of the
Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to qualify the
Pledged Collateral under the state securities or "Blue
Sky" laws and to obtain all necessary approvals of all
Governmental Authorities for the sale of the Pledged
Collateral, as requested by the Agent;
(iii) cause each such issuer to make
available to its security holders, as soon as
practicable, an earnings statement which will satisfy
the provisions of Section 10 of the Securities Act; and
(iv) do or cause to be done all such other
acts and things as may be necessary to make such sale
of the Pledged Collateral or any part thereof valid and
binding and in compliance with applicable law.
(b) Determination by the Agent to exercise its right
to sell any or all of the Pledged Collateral pursuant to
Section 12 hereof without making a request of the Grantor
pursuant to Section 13(a) hereof shall not by the sole fact
of such sale be deemed to be commercially unreasonable.
Section 14. Expenses. The Grantor shall upon written
demand pay to the Agent the amount of any and all expenses,
including the fees and disbursements of its counsel and of any
experts and agents, as provided in Section 12.03 of the Credit
Agreement.
Section 15. Amendments, Etc. No amendment or waiver of any
provision of this Agreement nor consent to any departure by the
Grantor herefrom shall in any event be effective unless the same
shall be in writing and signed by the party to be charged
therewith, and then such waiver or consent shall be effective
only in the specific instance and for the specific purpose for
which given.
Section 16. Notices. All notices and other
communications provided for hereunder shall be given in the
manner set forth in the Credit Agreement and to the addresses
first above written or, as to each party, at such other address
as may be designated by such party in a written notice to the
other party.
Section 17. Continuing Security Interest; Termination.
(a) This Agreement shall create a continuing security
interest in the Collateral and shall (i) remain in full
force and effect until payment in full of the Obligations,
the termination of the commitments of the Lenders to extend
credit under the Credit Agreement and the termination of the
Credit Agreement, (ii) be binding upon the Grantor, its
successors and assigns and (iii) except to the extent that
the rights of any transferor or assignor are limited by
Section 12.01 (concerning assignments) of the Credit
Agreement, inure, together with the rights and remedies of
the Agent hereunder, to the benefit of the Agent, the
Lenders and the Issuing Banks, subject to the terms and
conditions of the Credit Agreement. Without limiting the
generality of the foregoing clause (iii), any Lender may
assign or otherwise transfer any interest in any Loan owing
to such Lender to any other Person, and such other Person
shall thereupon become vested with all the benefits in
respect thereof granted to the Agent herein or otherwise,
subject, however, to the provisions of Section 12.01
(concerning assignments) of the Credit Agreement. Nothing
set forth herein or in any other Loan Document is intended
or shall be construed to give the Grantor's successors and
assigns any right, remedy or claim under, to or in respect
of this Agreement, any other Loan Document or any
Collateral. The Grantor's successors and assigns shall
include, without limitation, a receiver, trustee or
debtor-in-possession thereof or therefor.
(b) Upon the payment in full of the Obligations, the
termination of the commitments of the Lenders to extend
credit under the Credit Agreement and the termination of the
Credit Agreement, the security interest granted hereby shall
terminate and all rights to the Collateral shall revert to
the Grantor. Upon any such termination, the Agent shall
promptly return to the Grantor, at the Grantor's expense,
such of the Collateral held by the Agent as shall not have
been sold or otherwise applied pursuant to the terms hereof.
The Agent will, at the Grantor's expense, execute and
deliver to the Grantor such other documents as the Grantor
shall reasonably request to evidence such termination.
(c) Upon any release of the Agent's security interest
in any part of the Collateral expressly required to be given
by the Agent pursuant to Section 11.12(c) of the Credit
Agreement, the Agent shall execute and deliver to the
Grantor, at the Grantor's expense, all termination
statements, assignments and other documents and instruments
as may be necessary or desirable to release fully the
security interests in such Collateral granted hereby;
provided, however, that (i) the Agent shall not be required
to execute any such documents on terms which, in the Agent's
opinion, would expose the Agent to liability or create any
obligation or entail any consequence other than the release
of such security interests without recourse or warranty, and
(ii) such release shall not in any manner discharge, affect
or impair the Obligations or any security interests, liens
or other encumbrances upon (or obligations of the Grantor in
respect of) all interests retained by the Grantor, including
without limitation, the proceeds of any sale, all of which
shall continue to constitute part of the Collateral.
Section 18. Applicable Law; Severability. This Agreement
shall be construed in all respects in accordance with, and
governed by, the laws of the State of New York. Whenever
possible, each provision of this Agreement shall be interpreted
in such a manner as to be effective and valid under applicable
law, but if any provision of this Agreement shall be prohibited
by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity,
without invalidating the remainder of such provisions or the
remaining provisions of this Agreement.
Section 19. Consent to Jurisdiction and Service of Process;
Waiver of Jury Trial. ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST
THE GRANTOR WITH RESPECT TO THIS AGREEMENT MAY BE BROUGHT IN ANY
STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE OF
NEW YORK, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE
GRANTOR ACCEPTS, FOR ITSELF IN AND IN CONNECTION WITH ITS
PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE NONEXCLUSIVE
JURISDICTION OF THE AFORESAID COURTS, AND IRREVOCABLY AGREES TO
BE BOUND BY ANY FINAL JUDGMENT RENDERED THEREBY IN CONNECTION
WITH THIS AGREEMENT FROM WHICH NO APPEAL HAS BEEN TAKEN OR IS
AVAILABLE. THE GRANTOR IRREVOCABLY CONSENTS TO THE SERVICE OF
PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR
PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR
CERTIFIED MAIL, POSTAGE PREPAID, TO ITS NOTICE ADDRESS SPECIFIED
ON THE FIRST PAGE HEREOF, SUCH SERVICE TO BECOME EFFECTIVE TEN
(10) DAYS AFTER SUCH MAILING. EACH OF THE GRANTOR AND, BY
ACCEPTANCE HEREOF, THE AGENT AND THE LENDERS, IRREVOCABLY WAIVES
(A) TRIAL BY JURY IN ANY ACTION OR PROCEEDING WITH RESPECT TO
THIS AGREEMENT, AND (B) ANY OBJECTION (INCLUDING WITHOUT
LIMITATION, ANY OBJECTION OF THE LAYING OF VENUE OR BASED ON THE
GROUNDS OF FORUM NON CONVENIENS) WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING WITH
RESPECT TO THIS AGREEMENT IN ANY JURISDICTION SET FORTH ABOVE.
NOTHING HEREIN SHALL AFFECT THE RIGHT TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT OF ANY
LENDER TO BRING PROCEEDINGS AGAINST GRANTOR IN THE COURTS OF ANY
OTHER JURISDICTION.
IN WITNESS WHEREOF, the Grantor has caused this Agreement to
be duly executed and delivered by its officer thereunto duly
authorized as of the day first above written.
ANNTAYLOR, INC.
By: /s/Walter J. Parks
Name: Walter J. Parks
Title: Sr. V.P. - Finance
Agreed and accepted to as of
the date first above written:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Agent
By: /s/ Dietmar Schiel
Name: Dietmar Schiel
Title: Vice President
ANNEX I-A
PLEDGED SHARES
Stock
Class of Certificate No. of
Issuer Stock No. Shares
AnnTaylor Travel, Inc. Common 1 1
AnnTaylor Funding, Inc. Common 1 100
AnnTaylor Distribution
Services, Inc. Common 1 1
CAT US Inc. Common 1 2,000
CAT US Inc. Common 11 2,000
C.A.T. (Far East)
Limited Common 5 30,000
C.A.T. (Far East)
Limited Common 8 30,000
ANNEX I-B
PLEDGED DEBT
NONE
ANNEX II
LOCATIONS OF EQUIPMENT
See Attached.
3 15 280 MADISON SQUARE 5901 UNIVERSITY DRIVE HUNTSVILLE AL
358060000 2058372425
3 15 355 RIVERCHASE GALLERIA 2000 RIVERCHASE DR, SPE 208 BIRMINGHAM
AL 352440000
3 15 273 LITTLE ROCK 2002 PK PLZ SHOPPING CTR LITTLE ROCK
AR 722050000
5016639571
8 74 742 ARIZONA FACT SHOPS 4250 WEST
BOW RD PHOENIX AZ 850270000 6024659540
4 18 127 TUCSON MALL 4500 N.
ORACLE SUITE 455 TUCSON AZ
857050000 6028884080
4 18 174 BILTMORE FASHION PARK 2560 E.
CAMELBACK RD PHOENIX AZ
850160000 6024683339
4 18 331 SCOTTSDALE FASHION SQ 7014 E
CAMELBACK ROAD SCOTTSDALE AZ 852510000
6024238093
8 74 732 DESERT HILLS (CABAZON) 48400
SEMINOLE DRIVE STE 5000 CABAZON CA
922300000
8 74 740 MARINA SQ (SAN LEANDRO) MARINA
SQUARE SAN LEANDRO CA 945770000
8 74 739 NAPA 681 FACTORY STORE DRIVE NAPA
CA 945580000
8 74 717 CITADEL 100 CITADEL
DR, STE 114 COMMERCE CA 900400000
2137257033
8 74 725 BARSTOW 2796 TANGER
WAY, SPACE 213 BARSTOW CA
923110000 6192532999
4 22 383 CARMEL PLAZA 213 OCEAN
AVE. + MISSION AVE CARMEL CA
939210000 4086269565
8 74 715 GILROY 681
LEAVESLEY ROAD, STE 10 GILROY CA
950200000 4088481188
8 74 714 PETALUMA 2220
PETALUMA BLVD. NORTH PETALUMA CA 949520000
7077669592
8 79 799 GILROY 8300 ARROYO
CIRCLE GILROY CA
950200000
4 22 399 POST STREET 240 POST
STREET SAN FRANCISCO CA 941080000
4 23 299 BROADWAY PLAZA 1170
BROADWAY PLAZA WALNUT CREEK CA 945960000
5109370606
6 64 505 LA CUMBRE II 120 S. HOPE
AVE, #F16 SANTA BARBARA CA 931050000
8055631346
4 23 408 GALLERIA @ SOUTH BAY HAWTHORN
BLVD. REDONDO BEACH CA 902780000
4 23 330 CORTE MADERA 1616 REDWOOD
HIGHWAY CORTE MADERA CA 949250000
4159270577
4 23 324 EMBARCADERO CENTER EMBARCADERO
CENTER #3 SAN FRANCISCO CA 941110000
4159895355
4 23 197 STONERIDGE MALL 2511
STONERIDGE MALL PLEASANTON CA 945880000
5104633240
4 23 94 PALO ALTO 18 STANFORD
SHPNG. CTR. PALO ALTO CA 943040000
4158530433
4 23 193 SAN FRANSISCO CENTER 865 MARKET
STREET SAN FRANCISCO CA 941030000
4155432487
6 64 509 BROADWAY PLAZA 1275
BROADWAY PLAZA WALNUT CREEK CA 945960000
5109338551
8 79 798 MILPITAS GREAT MALL
OF BAY AREA MILPITAS CA
950350000
6 64 504 BEVERLY CENTER 131 NO. LA
CIENEGA #669 LOS ANGELES CA 900480000
3106594051
4 22 322 VALLEY FAIR 2855 STEVENS
CRK #2305 SANTA CLARA CA 950500000
4082470245
4 22 92 GHIRARDELLI SQUARE 900 NORTH
POINT STREET SAN FRANCISCO CA 941090000
4157752872
4 21 187 THE OAKS 460 W.
HILLCREST DRIVE THOUSAND OAKS CA 913600000
8053735352
4 21 71 WOODLAND HILLS 235
PROMENADE #177 WOODLAND
HILLS CA 913670000 8188882774
4 22 192 STONESTOWN GALLERIA 3251 20TH
AVENUE SAN FRANCISCO CA 941320000
4155640229
4 21 177 PASADENA 495-505
SOUTH LAKE AVE. PASADENA CA 911010000
8187924820
4 21 180 DESERT FASHION PLAZA 123 N. PALM
CANYON DR. PALM SPRINGS CA 922620000
6193277128
4 21 183 MEDIA CITY CENTER 201 E.
MAGNOLIA #236 BURBANK CA 915010000
8185586244
4 21 314 LA CUMBRE I 130 SOUTH
HOPE AVENUE, D15 SANTA BARBARA CA 931050000
8055639954
4 21 308 GLENDALE GALLERIA 2176
GLENDALE GALLARIA GLENDALE CA 912100000
8182460350
4 20 412 MONTCLAIR PLAZA 2066
MONTCLAIR PLAZA LANE MONTCLAIR CA 917630000
4 21 326 SANTA ANITA 400 S.
BALDWIN AVE., SUITE 615 ARCADIA CA
910071904 8188214425
4 21 342 SHERMAN OAKS 14066
RIVERSIDE DRIVE SP268 SHERMAN OAKS CA 914230000
8187840553
4 21 395 NORTHRIDGE FASHION CTR 9301 TAMPA
AVENUE SP124 NORTHRIDGE CA 913242501
4 22 90 SUTTER STREET 441 SUTTER
STREET SAN FRANCISCO CA 941080000
4159895381
4 20 415 TOPANGA PLAZA CANOGA PARK CA
4 20 404 7TH MKTPL @ CITICORP PZ 735 SOUTH
FIGUEROA LOS ANGELES CA 900170000
2136292932
4 22 291 DOWNTOWN PLAZA 545 DOWNTOWN
PLAZA #2063 SACRAMENTO CA 958140000
9164431972
4 19 79 HORTON PLAZA 25 HORTON
PLAZA SAN DIEGO CA
921010000 6192330705
4 19 172 MAIN PLACE 2800 N. MAIN
STREET #548 SANTA ANA CA 927010000
7145437668
4 19 173 LA JOLLA 1205
PROSPECT STREET LA JOLLA CA
920370000 6194540158
4 19 179 BREA MALL 2117 BREA
MALL BREA CA
926210000 7145299002
4 19 184 NORTH COUNTY FAIR 200 E. VIA
RANCHO PKY/S319 ESCONDIDO CA 920250000
6197379195
4 19 185 UNIVERSITY TOWN CTR 4417 LA
JOLLA VILLAGE DR., N-9 SAN DIEGO CA 921221206
6194506550
4 19 286 SOUTH COAST PLAZA 3333 BRISTOL
STREET COSTA MESA CA 926260000
7147541915
4 20 70 WESTWOOD 1031
WESTWOOD BLVD LOS ANGELES CA 900240000
3102086549
4 19 319 FASHION VALLEY 324 FASHION
VALLEY SAN DIEGO CA
921080000 6196832090
4 20 289 CENTURY CITY 10250 SANTA
MONICA DR LOS ANGELES CA 900670000
3102773041
4 20 73 BEVERLY HILLS 357 N.
CAMDEN DRIVE BEVERLY HILLS CA 902100000
3108587840
4 22 282 HILLSDALE SHOPPING CTR 276
HILLSDALE MALL SAN MATEO CA
944030000
4155711030
4 20 75 DEL AMO FASHION CTR 239 DEL AMO
FASHION CTR. TORRANCE CA 905030000
3103716546
4 20 76 BEVERLY CENTER 8522 BEVERLY
BLVD/S.782 LOS ANGELES CA 900480000
3106596655
4 20 171 CITICORP PLAZA 735 SOUTH
FIGUEROA LOS ANGELES CA 900170000
2136292932
4 22 195 ARDEN FAIR 1689 ARDEN
WAY SACRAMENTO CA 958150000
9165670290
4 20 182 PALOS VERDES 550 DEEP
VALLEY ROAD ROLLING HILLS CA 902740000
3105414470
4 20 181 SANTA MONICA PLACE 175 SANTA
MONICA PLACE SANTA MONICA CA 904010000
3103953650
8 74 741 CAMARILLO 850 VENTURA
BLVD. CAMARILLO CA 930100000
8053830482
8 74 710 CASTLE ROCK FACT SHOPS 505 FACTORY
SHOPS BLVD CASTLEROCK CO 801040000
3036883335
4 31 114 CHERRY CREEK 3000 E 1ST
AVE, #249 DENVER CO
802060000 3033551324
4 31 112 SIENA SQUARE 2070
BROADWAY, STORE D BOULDER CO
803020000 3034493971
4 31 110 LARIMER SQUARE 1421 LARIMER
SQUARE DENVER CO
802020000 3038920478
5 5 402 DANBURY FAIR 7 BACKUS
AVENUE SP C-115 DANBURY CT
068100000 2037910761
5 24 23 HARTFORD 1 CIVIC
CENTER PLAZA HARTFORD CT 061030000
2032784020
5 5 343 TRUMBULL SHOPPING PK 5065 MAIN
STREET TRUMBULL CT 066110000
2033744234
5 24 353 SOMERSET SQUARE 140
GLASTONBURY BLVD. GLASTONBURY CT 060334402
2036599315
5 5 293 STAMFORD TOWN CTR 100 GREYROCK
PLACE STAMFORD CT 069010000
2033591616
5 5 3 NEW CANAAN 81 ELM
STREET NEW CANAAN CT 068400000
2039660354
5 24 143 WEST FARMS 216 WEST
FARMS MALL FARMINGTON CT 060320000
2035218195
5 24 144 BUCKLAND HILLS 194 BUCKLAND
HILLS DR. MANCHESTER CT 060400000
2036447217
5 5 2 WESTPORT 97 MAIN
STREET WESTPORT CT 068800000
2032277557
5 5 4 GREENWICH 55 EAST
PUTNAM AVENUE GREENWICH CT 068300000
2036616455
5 5 1 NEW HAVEN 968 CHAPEL
STREET NEW HAVEN CT 065100000
2037772304
9 95 378 BOX & HOLD - SPRING '94 130 HAMILTON
STREET NEW HAVEN CT 065110000
2037722516
7 91 95 ANN TAYLOR DIRECT 130 HAMILTON
STREET NEW HAVEN CT 065110000
8002898295
1 7 134 UNION STATION 50
MASSACHUSETTS AVE. NE WASHINGTON DC 200020000
2023718010
1 7 21 GEORGETOWN PARK 3222 M
STREET, N.W. WASHINGTON DC 200070000
2023385290
6 61 510 UNION STATION 40
MASSACHUSETTS AVE-- N E WASHINGTON DC 200020000
2022892631
1 7 36 MAZZA GALLERIE 5300
WISCONSIN AVENUE WASHINGTON DC 200150000
2022441940
1 7 334 K STREET 1720 K
STREET, N.W. WASHINGTON DC 200060000
2024663544
6 61 506 GEORGETOWN PARK 3222 M
STREET NW-SP 23 WASHINGTON DC 200070000
2023381061
8 71 737 REHOBOTH BEACH REHOBOTH
OUTLET CTR REHOBOTH BEACH DE 199710000
3 16 101 FASHION MALL 321 N.
UNIVERSITY DR. PLANTATION FL 333240000
3054246707
3 16 303 DADELAND MALL 7415
SOUTHWEST 88TH ST MIAMI FL
331560000 3056626612
3 16 102 BOYNTON BEACH MALL 801 N.
CONGRESS AVENUE BOYNTON BEACH FL 334260000
4073641211
3 16 304 BOCA RATON TOWN CENTER
MALL BOCA RATON FL 334310000
4073910785
3 16 311 FT. LAUDERDALE 2486B E.
SUNRISE BLVD. FT. LAUDERDALE FL 333040000
3055665801
3 16 317 BAL HARBOUR SHOPS 9700 COLLINS
AVENUE BAL HARBOUR FL 331540000
3058684455
3 16 363 THE FALLS 8888 HOWARD
DRIVE MIAMI FL
331760000 3053254047
3 16 63 COCONUT GROVE 3399
VIRGINIA STREET COCONUT GROVE FL 331330000
3054440146
3 16 398 THE GARDENS 3101 PGA
BLVD.-S K-20 PALM BCH GARDENS FL 334100000
8 72 744 SAWGRASS MILLS 12801 WEST
SUNRISE BLVD. SUNRISE FL
333230000
3 15 69 ALTAMONTE MALL 451
ALTAMONTE AVENUE ALTAMONTE SPRGS FL 322010000
4078343909
8 72 731 ORLANDO 5225
INTERNATIONAL DR ORLANDO FL
328190000
8 72 722 VERO BEACH 1850 94TH
DRIVE SPACE 160 VERO BEACH FL
329660000 4077782337
8 72 716 ST. AUGUSTINE 2700 STATE
ROAD 16 ST. AUGUSTINE FL 320920000
9048231425
8 72 711 SILVER SANDS 5105 HIGHWAY
98 EAST, STE 113 DESTIN FL
325410000 9046540775
3 15 410 THE OAKS MALL THE OAKS
MALL GAINESVILLE FL
326050000 9043631869
8 72 701 SAWGRASS MILLS 12801
W.SUNRISE BLVD SUNRISE FL
333230000 3058469607
8 72 708 GULF COAST FACT SHOPS 5460 FACT
STOPS BLVD. ST 700 ELLENTON FL
342220000 8137236713
3 15 100 OLD HYDE PARK 1618 SNOW
AVENUE TAMPA FL
336060000 8132511919
3 15 103 THE AVENUES 10300
SOUTHSIDE BLVD. JACKSONVILLE FL
322560000 9043631869
3 15 298 WINTER PARK 126 PARK
AVENUE NORTH WINTER PARK FL 327890000
4076285600
3 15 409 WEST SHORE PLAZA 287 WEST
SHORE PLAZA-SP C5 TAMPA FL 336090000
8132828819
3 15 347 BRANDON TOWN CENTER 2615 W.
BRANDON BLVD.-S 555 BRANDON FL
335114720
3 15 310 WATERSIDE SHOPS 5475 TAMIAMI
TRAIL N., STE 60 NAPLES FL
339630000 8135984454
3 15 391 SEMINOLE TOWNE CTR 117 TOWNE
CENTER CIRCLE SANFORD FL
327710000 4073213886
3 15 104 UNIVERSITY MALL 2200 FOWLER
AVENUE TAMPA FL
336120000 8139715200
8 72 743 MAGNOLIA BLUFF RT. 1 BOX
1160 DARIEN GA
313050000
3 13 302 NORTH POINT MALL 1180 NORTH
POINT CIRCLE ALPHARETTA GA 302020000
4016644915
3 13 284 PERIMETER MALL 4400 ASHFORD
DUNWOODY RD ATLANTA GA
303460000 4046718874
3 13 163 CUMBERLAND MALL 1216
CUMBERLAND MALL ATLANTA GA
303390000 4043196363
3 13 165 AUGUSTA MALL 3450
WRIGHTBORO RD AUGUSTA GA
309090000 7066670471
3 13 414 PHIPP'S PLAZA ATLANTA
GA
3 13 294 LENOX SQUARE 3303
PEACHTREE ROAD ATLANTA GA
303260000 4042640450
4 30 178 ALA MOANA CENTER 1450 ALA
MOANA BLVD #3220 HONOLULU HI
968140000 8089450028
4 30 327 PEARLRIDGE CENTER 981005 MOANA
LUA RD. #121 AIEA HI
967010000 8084878486
2 10 333 OLD ORCHARD CENTER 74 OLD
ORCHARD ROAD-S74 SKOKIE IL
600770000 7086797370
2 10 48 NORTH CLARK STREET 1750 NORTH
CLARK ST. CHICAGO IL
606140000 3123374462
8 73 721 TUSCOLA B-100
TUSCOLA BLVD., STE B-100 TUSCOLA IL
619530000 2172532330
2 10 33 CONTINENTAL BANK 231 S
LASALLE ST CHICAGO IL
606040000 3123325572
2 10 28 OAK STREET 103 EAST OAK
STREET CHICAGO IL
606110000 3129435411
2 10 25 NORTH MICHIGAN AVENUE 700 N.
MICHIGAN AVE. CHICAGO IL
606110000 3123350117
2 10 358 NORTHBROOK MALL 2182
NORTHBROOK COURT NORTHBROOK IL 600621415
2 27 392 WOODFIELD MALL N311
WOODFIELD SHOPPING SCHAUMBERG IL 601730000
2 27 116 WHEATON TOWN SQUARE 91
NAPERVILLE RD 52 WHEATON
IL 601870000
7086904377
2 27 111 CHARLESTOWNE CENTRE 3102 E. MAIN
STREET ST. CHARLES IL
601740000 7085847980
2 27 307 OAKBROOK CENTER 208 OAKBROOK
CENTER OAKBROOK IL 605210000
7085734825
8 73 704 GURNEE MILLS 6170 GRAND
AVE. STE 745 GURNEE IL
600310000 7088550100
2 27 35 WOODFIELD MALL WOODFIELD
MALL SCHAUMBURG IL 601730000
7086197270
2 27 389 CIRCLE CENTRE 49 WEST
MARYLAND ST INDIANAPOLIS IN
462250000 3176385330
8 73 728 FREMONT 6245 NO. OLD
27 SUITE C-10 FREMONT IN
467370000 2198331664
8 73 730 MICHIGAN CTY (LIGHTHOUSE) 601 WABASH
STREET, STE 1301 MICHIGAN CITY IN 463600000
2198793409
2 27 153 SOUTH BEND 6501 N.
GRAPE ROAD MISHAWAKA IN 465440000
2192776601
2 27 241 KEYSTONE AT THE CROSSING 8701
KEYSTONE CROSSING INDIANAPOLIS IN
462400000 3175749445
8 73 729 EDINBURGH 11626 N.E
EXECUTIVE DR, F-40 EDINBURGH IN
461240000 8125260147
3 13 360 OXMOOR CENTER 7900
SHELBYVILLE ROAD LOUISVILLE KY
402220000
9 95 37 D.C. FLOW-THRU 7101
DISTRIBUTION DRIVE LOUISVILLE KY
402580000
3 13 275 FAYETTE MALL 3473
NICHOLASVILLE RD. LEXINGTON KY
405030000 6062730270
3 29 345 CANAL PLACE 333 CANAL
STREET NEW ORLEANS LA 701300000
5045292306
3 29 106 MALL AT ST. VINCENT 1133 ST.
VINCENT AVE. BOX 30 SHREVEPORT LA
711040000 3182269554
3 29 89 NEW ORLEANS CENTRE 1400 POYDRAS
STREET NEW ORLEANS LA 701120000
5045611002
3 29 98 LAKESIDE MALL 3301
VETERANS BLVD 45A METAIRIE LA
700020000 5048350843
5 24 305 CHESTNUT HILL 199
BOYLESTON STREET CHESTNUT
HILL MA 021670000 6172444848
5 6 12 CAMBRIDGE 44 BRATTLE
STREET CAMBRIDGE MA
021380000 6178643720
5 24 24 WELLESLEY SQUARE 73 CENTRAL
STREET WELLESLEY MA
021810000 6172356770
5 24 16 HOLYOKE MALL 50 HOLYOKE
ST/E-272 HOLYOKE MA
010400000 4135340951
5 24 5 BRAINTREE S. SHORE
SHOPPING CTR. BRAINTREE MA
021840000 6178483280
5 6 332 FANEUIL HALL 111 FANEUIL
HALL MKT. PL. BOSTON MA
021090000 6177420031
5 6 329 PRUDENTIAL CENTER 800 BOYLSTON
STREET BOSTON MA
021160000 6174219097
5 6 288 NORTHSHORE MALL NORTHSHORE
MALL RT. 20 PEABODY MA
019600000 5085320064
5 6 108 CAMBRIDGESIDE 100
CAMBRIDGESIDE W-202 CAMBRIDGE MA
021410000 6172252779
5 6 10 BURLINGTON BURLINGTON
MALL BURLINGTON MA
018030000 6172723044
5 6 22 NEWBURY 18 NEWBURY
STREET BOSTON MA
021160000 6172620763
5 24 318 NATICK MALL 1245
WORCHESTER RD-SP 1168 NATICK MA
017600000 5086501119
8 71 720 WORCESTER 100 FRONT
STREET SUITE 10 WORCESTER MA
016080000 5087670295
8 71 733 OCEAN CITY 12741 OCEAN
GATEWAY OCEAN CITY MD
218420000
1 8 31 WHITE FLINT WHITE FLINT
MALL KENSINGTON MD
207950000 3017703233
1 7 132 HARBOR PLACE 200 EAST
PRATT STREET BALTIMORE MD
212020000 4103320567
1 7 301 ANNAPOLIS MALL 1508
ANNAPOLIS MALL ANNAPOLIS MD
214010000 4105732053
1 8 137 MONTGOMERY MALL 7101
DEMOCRACY BLVD/1058 BETHESDA MD
208170000 3013650771
1 7 138 TOWSON TOWN CENTER 11850 MARKET
STREET TOWSON MD
212040000 4108231381
1 7 131 OWINGS MILLS 10300 MILL
RUN CIRCLE OWINGS MILLS MD
211170000 4103630354
2 12 155 BRIARWOOD MALL 100
BRIARWOOD CIRCLE-E114 ANN ARBOR MI
481080000 3137410270
2 12 154 FAIRLANE TOWN CENTER 18900
MICHIGAN AVE.J-122 DEARBORN MI
481263901 3134412720
2 12 243 GROSSE POINTE FARMS 16822
KERCHEVAL AVE. G P FARMS MI
482300000 3138823380
2 12 246 WOODLAND MALL 3195 28TH
STREET SE GRAND RAPIDS MI 495080000
6169429099
2 12 249 LAUREL PARK PLACE 37598 W 6
MILE ROAD LIVONIA MI
481520000 3135916000
2 12 242 TWELVE OAKS MALL 27434 NOVI
ROAD NOVI MI
483770000 8103440066
2 12 41 SOMERSET MALL 2801 W. BIG
BEAVER K252 TROY MI
480843203 8106434457
8 73 713 BIRCH RUN 8825 MARKET
PL DR, STE 420 BIRCH RUN MI
484150000 5176244640
2 11 167 MALL OF AMERICA MALL OF
AMERICA S-218 BLOOMINGTON MN 554250000
6128549220
2 11 152 CONSERVATORY 800 NICOLLET
MALL MINNEAPOLIS MN
554020000 6123384308
2 11 151 RIDGEDALE CENTER 12721
WAYZATA BLVD. MINNETONKA MN 553430000
6125939842
2 11 394 SOUTHDALE CENTER 170
SOUTHDALE CENTER EDINA MN
554350000 6129226868
2 11 335 ROSEDALE CENTER 206 ROSEDALE
CENTER ROSEVILLE MN
551130000 6126383015
8 73 724 BRANSON 300 TANGER
BLVD. STE 308 BRANSON MO
656162188 4173392982
2 11 315 PLAZA FRONTENAC 38 PLAZA
FRONTENAC ST. LOUIS MO
631310000 3149911956
2 11 403 ST. LOUIS GALLERIA 1418 ST.
LOUIS GALLERIA ST. LOUIS MO
631170000 3148632014
8 73 718 OSAGE BEACH FACTORY OUT
E HGWY 54,G11 OSAGE BEACH MO
650650000 3143483191
2 11 125 ST LOUIS GALLERIA 1418 ST.
LOUIS GALLERIA ST. LOUIS MO
631170000 3148632014
2 11 120 CLOSED-PLAZA FRONTENAC 38 PLAZA
FRONTENAC ST. LOUIS MO
631310000 3149911956
2 11 124 COUNTRY CLUB PLAZA 4728
BROADWAY KANSAS CITY MO
641120000 8165616300
2 11 122 WEST COUNTY CENTER WEST COUNTY
CENTER DES PERES MO
631310000 3148220095
2 11 121 ST. LOUIS CENTER 515 NORTH
6TH STREET ST. LOUIS MO
631010000 3142319356
6 62 508 PLAZA FRONTENAC 1701 SOUTH
LINDBURGH BLVD. ST. LOUIS MO
631310000 3144324001
3 15 406 NORTHPARK MALL 1200 E.
COUNTY LINE RD-S 1116 RIDGELAND MS
391570000 6019579417
3 28 277 ASHEVILLE 800 BREVARD
RM 850 ASHEVILLE NC
288060000 7046658350
3 28 352 SOUTHPARK MALL 4400 SHARON
ROAD CHARLOTTE NC
282110000 7043647500
3 28 271 HANES MALL 3320 SILAS
CREEK PKWY #756 WINSTON-SALEM NC
271030000 9106599744
3 28 359 FOUR SEASONS 210 4
SEASONS TWN CTR MALL GREENSBORO NC
274040000 9102999118
3 28 328 CRABTREE VALLEY MALL 4325
GLENWOOD AVE RALEIGH NC
276120000 9195719888
3 28 336 NORTHGATE MALL 1058 W CLUB
BLVD. DURHAM NC
277010000 9194169526
2 11 364 OAKVIEW MALL 3001 SOUTH
144TH ST OMAHA NE
681440000
2 11 123 PACIFIC PLACE 10341
PACIFIC STREET OMAHA NE
681140000 4023909002
5 6 13 PHEASANT LANE 310 DANIEL
WEBSTER H'WAY S. NASHUA NH
030630000 6038910050
5 6 129 ROCKINGHAM PARK MALL 99
ROCKINGHAM BLVD SALEM NH
030790000
6038906062
1 26 59 MENLO PARK 307 MENLO
PARK EDISON NJ
088300000 9084943866
1 26 20 RIVERSIDE SQUARE 143
RIVERSIDE SQUARE HACKENSACK NJ
076010000 2014892590
1 26 369 PALISADES AVENUE 23-25-27
PALISADES AVE ENGLEWOOD NJ
076310000
1 26 323 BRIDGEWATER COMMONS 400 COMMONS
WAY BRIDGEWATER NJ
088070000 9087070907
1 26 297 RIDGEWOOD 240
RIDGEWOOD AVE RIDGEWOOD NJ
074510000 2016121117
1 26 313 SHORT HILLS MALL AT
SHORT HILLS SHORT HILLS NJ
070780000 2014674290
1 4 105 CHERRY HILL MALL 839 CHERRY
HILL MALL CHERRY HILL NJ
080020000 6096657450
6 61 507 THE GROVE AT SHREWSBURY 553 RT 53 -
SP N-J SHREWSBURY NJ
077020000 9085307266
1 4 366 PALMER SQUARE 17 PALMER
SQUARE WEST PRINCETON NJ
085400000
1 4 296 THE GROVE AT SHREWSBURY 559 RT. 35 N-
10A SHREWSBURY NJ
077020000 9082248803
1 4 128 FREEHOLD RACEWAY MALL 3710 RT.
9/C140-J FREEHOLD
NJ 077280000 9084620073
1 4 118 OCEAN COUNTY MALL 1201 HOOPER
AVE./RM. 451 TOMS RIVER NJ
087530000 9082403669
1 4 58 WOODBRIDGE CENTER 249
WOODBRIDGE CTR DR. WOODBRIDGE NJ
070950000 9088551774
4 18 117 LINCOLN PLACE 130 LINCOLN
AVENUE SANTA FE
NM 875010000 5059840101
4 18 337 CORONADO CENTER 6600 MENAUL
BLVD. NE #225 ALBUQUERQUE NM
871100000 5058817480
4 18 119 FORUM 3500 LAS
VEGAS BLVD LAS VEGAS
NV 891090000 7027940494
4 18 341 FASHION SHOW 3200 LAS
VEGAS BLVD. SO. LAS VEGAS
NV 891090000 7027348614
5 5 349 THE WESTCHESTER 125
WESTCHESTER AVE WHITE PLAINS NY
106010000 9146448380
5 5 387 LARCHMONT (PALMER AVE) 1919 PALMER
AVENUE LARCHMONT NY
105380000 9148343637
5 5 416 THE WESTCHESTER 125
WESTCHESTER AVENUE WHITE PLAINS NY
106014522
1 25 19 SOUTH STREET SEAPORT 25 FULTON
STREET NEW YORK
NY 100380000 2126085612
9 95 38 NYO SAMPLES 142 WEST
57TH STREET NEW YORK
NY 100190000
5 5 57 NANUET MALL 75 W. ROUTE
59, SUITE 2032 NANUET
NY 109540000 9146230390
1 2 145 75TH & 3RD 1320 THIRD
AVENUE NEW YORK
NY 100210000 2128613392
8 71 734 NIAGARA FALLS 1900
MILITARY RD NIAGARA FALLS NY
143040000
1 2 203 UPPER WEST SIDE 2015-17
BROADWAY(@ 69TH ST NEW YORK
NY 100230000 2128737344
5 5 15 EASTCHESTER 696 WHITE
PLAINS RD. SCARSDALE NY
105830000 9147230500
5 3 338 CAROUSEL CENTER 320 HIAWATHA
BLVD. WEST SYRACUSE
NY 132099501 3154664001
8 71 709 WOODBURY COMMONS ROUTE 32 C-3
CENTRAL VALLEY NY
109170000 9149284586
1 2 208 87TH & BROADWAY 2380
BROADWAY NEW YORK
NY 100240000 2127213130
1 2 49 THIRD AVENUE (@ 50TH ST. 805 THIRD
AVENUE NEW YORK
NY 100220000 2123085333
1 25 309 WORLD FINANCIAL CTR 225 LIBERTY
STREET NEW YORK
NY 102810000 2129451991
1 25 207 MANHATTAN MALL @ 33RD ST 901 AVE OF
AMERICAS NEW YORK NY
100010000 2125643992
1 2 14 80TH & MADISON 1055 MADISON
AVENUE NEW YORK
NY 100280000 2129888930
1 25 200 FIFTH AVENUE 575 FIFTH
AVENUE NEW YORK
NY 100170000 2129223621
5 3 29 MANHASSET 1990
NORTHERN BLVD. MANHASSET NY
110300000 5166271028
1 1 362 645 MADISON AVENUE 645 MADISON
AVENUE NEW YORK
NY 100220000
1 25 99 STATEN ISLAND MALL 2655
RICHMOND AVE. STATEN ISLAND NY
103140000 7189837744
1 25 397 SOUTH STREET SEAPORT 25 FULTON
STREET NEW YORK
NY 100380000
5 3 140 WOODBURY COMMONS 8285 JERICHO
T'PIKE WOODBURY NY
117970000 5163674142
8 71 723 RIVERHEAD TANGER DRIVE
STE 512 RIVERHEAD NY
119010000 5163698800
5 3 201 CEDARHURST 445 CENTRAL
AVENUE CEDARHURST NY
115160000 5163740420
5 3 209 ROOSEVELT FIELD MALL RSVLT FIELD
MALL/S-1208 GARDEN CITY NY
115300000 5167413700
5 3 205 WALDEN GALLERIA 2000 WALDEN
AVENUE BUFFALO
NY 142250000 7166846117
5 3 405 BRIDGEHAMPTON COMMONS
BRIDGEHAMPTON NY
119320000
5 3 396 WALT WHITMAN MALL 160-5 RTE
HUNTINGTON NY
117460000 5164234443
5 3 204 CROSSGATE MALL 120
WASHINGTON AVE. EXT. ALBANY
NY 122030000 5184564433
5 3 393 EASTVIEW MALL 7979
PITTSFORD-VICTOR RD VICTOR
NY 145640000 7164259650
2 14 321 TOWER CITY CENTER 230 HURON
ROAD NW CLEVELAND OH
441130000 2162411290
6 62 503 COLUMBUS CITY CENTER 315 COLUMBUS
CITY DRIVE COLUMBUS OH
432150000 6142286688
2 14 295 WORTHINGTON MALL 111
WORTHINGTON MALL COLUMBUS OH
430850000 6148484557
6 62 502 KENWOOD TOWN CENTER 7875
MONTGOMERY ROAD CINCINNATI
OH 452360000 5137940040
2 14 354 BEACHWOOD PLACE 26300 CEDAR
ROAD, SPACE 152 BEACHWOOD OH
441220000
2 14 386 ERIEVIEW GALLERIA 1301 EAST
9TH STREET CLEVELAND OH
441140000 2162416622
2 14 292 FAIRFIELD COMMONS 2727
FAIRFIELD COMMONS BEAVER CREEK OH
454310000 5133200040
2 14 244 KENWOOD TOWN CENTRE 7875
MONTGOMERY ROAD CINCINNATI
OH 452360000 5137917544
8 73 727 AURORA FARMS 549 S.
CHILLICOTHE RD. STE 400 AURORA
OH 442020000 2165625115
2 14 126 TOWER PLACE 28 WEST 4TH
ST/B-33 CINCINNATI
OH 452020000 5136514590
2 14 245 COLUMBUS CITY CENTER 303 CITY
CENTER DRIVE COLUMBUS OH
432150000 6142213335
2 14 248 WESTGATE MALL 3190
WESTGATE MALL FAIRVIEW PK
OH 441260000 2163333351
8 73 712 OHIO FACTORY SHOPS 8000 FACTORY
SHOPS BLVD. JEFFERSONVILLE OH
431280000 6149482100
3 17 262 OKLAHOMA CITY 50 PENN
PLACE OKLAHOMA CITY OK
731180000 4058433557
3 17 263 UTICA SQUARE 1948 UTICA
SQUARE TULSA
OK 741140000 9187445073
3 17 346 WOODLAND HILLS 7021 S.
MEMORIAL DR. -S 158 TULSA
OK 741330000
4 30 196 PIONEER PLACE 700 SW 5TH
AVENUE PORTLAND
OR 972040000 5032220125
4 30 388 WASHINGTON SQ SHOPPING CT 9585 WEST
WASHINGTON SQ PORTLAND
OR 972230000
8 71 735 THE CROSSINGS 285
CROSSINGS FACTORY TANNERSVILLE PA
183720000 7176889605
8 72 706 MILLSTREAM 201 OUTLET
DRIVE LANCASTER
PA 176020000 7173932074
2 9 44 KING-OF-PRUSSIA PLAZA 432 GODDARD
BLVD. KING-OF-PRUSSIA PA
194060000 2153370143
8 71 700 FRANKLIN MILLS 1556
FRANKLIN MILLS CI PHILADELPHIA
PA 191540000 2156379410
2 9 55 MT. LEBANON 1500
WASHINGTON ROAD MT. LEBANON
PA 152280000 4125618753
2 9 46 OXFORD CENTER 301 GRANT
STREET PITTSBURGH
PA 152190000 4122614772
2 9 51 ROSS PARK MALL 1000 ROSS
PARK MALL DR. PITTSBURGH
PA 152370000 4123640170
2 9 52 WALNUT STREET 1713 WALNUT
STREET PHILADELPHIA
PA 191030000 2159779336
2 9 400 KING-OF-PRUSSIA PLAZA 160 GULPH
MILLS RD KING OF PRUSSIA PA
194060000 6103540770
2 9 56 GLEN EAGLE SQUARE 539
WILMINGTON-W. US202 GLEN MILLS
PA 193420000 2155583660
2 9 361 WILLOW GROVE PARK 2500
MORELAND ROAD WILLOW GROVE PA
190900000
2 9 348 SHADYSIDE 5407 WALNUT
STREET PITTSBURGH
PA 152320000
8 73 719 GROVE CITY I-79 AND RT
208, SUITE 350 GROVE CITY
PA 161270000 4127485101
2 9 43 ARDMORE 23 PARKING
PLAZA ARDMORE
PA 190030000 2156424293
5 24 6 WARWICK 117 WARWICK
MALL WARWICK
RI 028860000 4017379220
3 28 382 HAYWOOD MALL 700 HAYWOOD
ROAD S1058 GREENVILLE
SC 296070000 8036273857
3 28 351 MALL AT SHELTER COVE 24 SHELTER
COVE LANE HILTON HEAD
SC 299280000 8038422388
8 72 736 MYRTLE BEACH
MYRTLE BEACH SC
3 28 325 KING STREET (CHARLESTON) 265-267 KING
STREET CHARLESTON
SC 294010000 8037228231
3 13 380 WEST TOWN MALL 7600
KINGSTON PIKE-S 1582 KNOXVILLE
TN 379190000
3 13 279 COOL SPRINGS GALLERIA 1800
GALLERIA BLVD/S. 1530 FRANKLIN
TN 370640000 6147717232
3 13 384 THE MALL @ GREEN HILLS 2126 ABBOT
MARTIN ROAD NASHVILLE
TN 372150000
3 13 278 HAMILTON PLACE MALL 2100
HAMILTON PL BLVD CHATTANOOGA TN
374210000 6158947694
3 13 261 BELLEVUE CENTER 7620 US HWY
70 SO. NASHVILLE
TN 372210000 6156467692
3 13 260 SADDLECREEK 7614 W.
FARMINGTON BLVD GERMANTOWN TN 381380000
9017567996
3 17 320 NORTH PARK CENTER 425 NORTH
PARK CENTER DALLAS
TX 752250000 2146915544
3 17 283 DALLAS GALLERIA 13350 DALLAS
PARKWAY DALLAS
TX 752400000 2143864548
8 72 707 SAN MARCOS 3939
INTERSTATE HIGHWAY 35 SAN MARCOS
TX 786660000 5127546754
8 72 726 GAINESVILLE 4321 I-H 35
NORTH, SPACE 600 GAINESVILLE
TX 762400000 8176886650
3 17 86 NORTH STAR MALL 7400 SAN
PEDRO - SUITE 620 SAN ANTONIO
TX 782160000 2103664742
3 17 350 COLLIN CREEK 811 NORTH
CENTRAL EXPWY PLANO
TX 750758815
3 17 344 ARBORETUM MARKET 9722 GREAT
HILLS TRAIL AUSTIN
TX 787590000 5123458307
3 17 356 HIGHLAND MALL 6001 AIRPORT
ROAD AUSTIN
TX 787520000
3 17 357 HULEN MALL 4800 SOUTH
HULEN ST.-S 130 FORT WORTH
TX 761320000
3 29 83 TOWN & COUNTRY 800 WEST
BELT HOUSTON
TX 770240000 7139731196
3 29 368 BAYBROOK MALL 1029
BAYBROOK MALL FRIENDSWOOD TX
775460000 7132808331
3 29 281 HOUSTON GALLERIA 5085
WESTHEIMER SUITE 2880 HOUSTON TX
770560000 7136273722
3 29 266 WILLOWBROOK MALL 7925 FM 1960
W PH 1096 WILWBR HOUSTON
TX 770700000 7134696792
3 29 300 RIVER OAKS 1992 WEST
GRAY SP609 HOUSTON
TX 770190000 7139427345
3 17 417 PRESTON PARK VILLAGE 1900 PRESTON
RD PLANO
TX 75093000
3 17 390 UNIVERSITY VILLAGE 1620 SUNIVERSITY DRIVE
FORT WORTH TX 761070000
3 17 385 HIGHLAND PARK VILLAGE 47 HIGHLAND
PARK VILLAGE DALLAS
TX 752050000 2145224700
3 17 411 COLLECTION @ BWY & SUNSET 7959
BROADWAY SAN ANTONIO
TX 782090000
4 31 115 TROLLEY SQUARE 392 TROLLEY
SQUARE SALT LAKE CITY UT
841020000 8013221061
4 31 340 FASHION PLACE 6191 SOUTH
STATE #201 MURRAY
UT 841070000 8012611071
1 8 381 FASHION SQUARE 1554 EAST RIO ROAD
CHARLOTTESVILLE VA 229010000
1 8 130 REGENCY SQUARE 1404 PARHAM
ROAD RICHMOND
VA 232290000 8047412797
1 8 159 SPRINGFIELD MALL 6453
SPRINGFIELD MALL SPRINGFIELD
VA 221500000 7039719108
1 8 133 CHESTERFIELD TOWN CENTER 11500
MIDLOTHIAN T'PIKE RICHMOND VA
232350000 8047941780
1 8 407 PENTAGON CITY 1100 SOUTH
HAYES ARLINGTON
VA 222020000 7034153170
1 7 312 TYSONS GALLERIA 2001
INTERNATIONAL DRIVE MCLEAN
VA 221020000 7039179854
8 72 705 POTOMAC MILLS 2700 POTOMAC
MILS CIR STE 933 PRINCE WILLIAM VA
221920000 7034915308
1 7 30 TYSON'S CORNER TYSON'S
CORNER CENTER MCLEAN VA
221020000 7038930777
1 8 136 RESTON TOWN CTR 11850 MARKET
STREET RESTON
VA 220900000 7037874602
5 6 367 CHURCH ST. MARKET PLACE ONE CHURCH
STREET BURLINGTON
VT 054020000 8028604746
4 30 413 SOUTHCENTER MALL 633
SOUTHCENTER TUKWILA
WA 981880000
4 30 285 BELLEVUE SQUARE BELLEVUE
SQUARE # 1001 BELLEVUE
WA 980040000 2064553470
4 30 194 CITY CENTRE 1420 FIFTH
AVENUE SEATTLE
WA 981010000 2066234818
8 74 738 SUPERMALL 1101
SUPERMALL WAY SEATTLE
WA 980010000
2 27 401 MAYFAIR MALL 2500 N.
MAYFAIR ROAD-SP 0-28 WAUWATOSA WI
532260000 4147749222
ANNEX III
UCC FILINGS
See Attached.
UCC Filing Jurisdictions
AnnTaylor, Inc.
Alabama Secretary of State
Arizona Secretary of State
Arkansas Secretary of State
Office of the Clerk of the
Circuit Court and
Ex Officio Recorder of
Pulaski County
California Secretary of State
Colorado Secretary of State
Connecticut Secretary of State
Delaware Secretary of State
District of
Columbia Recorder of Deeds of the District of Columbia
Florida Secretary of State
Georgia Clerk of the Superior Court of Fulton County
Hawaii Registrar of Conveyances
Illinois Secretary of State
Indiana Secretary of State
Kentucky Secretary of State of the Commonwealth of
Kentucky
Office of the County Clerk of
Jefferson
County
Louisiana Recorder of Mortgages of Orleans Parish
Maryland Maryland State Department of Assessments and
Taxation
Massachusetts Secretary of Commonwealth
Michigan Secretary of State
Minnesota Secretary of State
Mississippi Secretary of State
Chancery Clerk of Madison County
Missouri Secretary of State
Nebraska Secretary of State
Nevada Secretary of State
New Hampshire Secretary of State
New Jersey Secretary of State
New Mexico Secretary of State
New York Department of State
North Carolina Secretary of State
Ohio Secretary of State
Oklahoma County Clerk of Oklahoma County
Oregon Secretary of State
Pennsylvania Secretary of the Commonwealth
Rhode Island Secretary of State
South Carolina Secretary of State
Tennessee Secretary of State
Texas Secretary of State
Utah Division of Corporations and Commercial Code
Vermont Secretary of State
Town Clerk of Burlington
Virginia State Corporation Commission
Washington Department of Licensing
Wisconsin Secretary of State
098888\0048\00067\959LG33V.OTH
--
098888\0048\00067\959LG33V.OTH
--
EXECUTION COPY
TRADEMARK SECURITY AGREEMENT
THIS TRADEMARK SECURITY AGREEMENT (as such agreement may be
amended, supplemented or otherwise modified from time to time,
this "Trademark Security Agreement") made as of the 29th day of
September, 1995, by ANNTAYLOR, INC., a corporation having its
principal place of business located at 142 West 57th Street, New
York, New York 10019 (the "Borrower") in favor of BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION, with an office located at
1455 Market Street, San Francisco, California 94103, in its
capacity as the Agent under the "Credit Agreement" (as defined
below) (the "Agent").
R E C I T A L S:
The Borrower, the Agent, BA Securities, Inc., as Arranger,
Bank of America National Trust and Savings Association and Fleet
Bank, National Association as Co-Agents, and certain financial
institutions currently and in the future to be parties to the
Credit Agreement (as defined below) (such financial institutions
being collectively, the "Lenders") have entered into a certain
Amended and Restated Credit Agreement dated as of September 29,
1995 (as such agreement may be amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"), which
provides (i) for the Lenders to make Loans to the Borrower and
for the Issuing Banks to issue the Letters of Credit and (ii)
that as a condition precedent to the making of the Loans and the
issuance of the Letters of Credit, the Borrower enter into this
Trademark Security Agreement to secure the Obligations.
NOW, THEREFORE, in consideration of the above premises and
in order to induce the Lenders to make the Loans and each Issuing
Bank to issue the Letters of Credit under the Credit Agreement,
the Borrower hereby agrees with the Agent for its benefit, for
the benefit of the Lenders and the Issuing Banks as follows:
1. Defined Terms.
(a) Unless otherwise defined herein, the capitalized terms
used herein which are defined in the Credit Agreement shall have
the meanings specified in the Credit Agreement.
(b) The words "hereof," "herein" and "hereunder" and words
of like import when used in this Trademark Security Agreement
shall refer to this Trademark Security Agreement as a whole and
not to any particular provision of this Trademark Security
Agreement, and section references are to sections in this
Trademark Security Agreement unless otherwise specified.
(c) All terms defined in this Trademark Security Agreement
in the singular shall have comparable meanings when used in the
plural, and vice versa, unless otherwise specified.
2. Security Interest in Trademarks.
To secure the complete and timely payment, performance and
satisfaction of the Obligations, the Borrower hereby grants to
the Agent for the benefit of the Agent, the Lenders and the
Issuing Banks a security interest in, with power of sale to the
extent permitted by applicable law, all of the Borrower's
now-owned or existing and filed and hereafter acquired or arising
and filed:
(a) trademarks, trademark registrations, trade names and
trademark applications for any of the foregoing in the United
States Patent and Trademark Office or in any other office or with
any other official anywhere in the world or which are used in the
United States or any state, territory or possession thereof, or
in any other place, nation or jurisdiction anywhere in the world,
including, without limitation, the trademarks, trademark
registrations, service marks, service mark registrations and
applications listed on Annex I, attached hereto and made a part
hereof, and (i) all renewals thereof, (ii) all income, royalties,
damages and payments now and hereafter due and/or payable with
respect thereto, including, without limitation, payments under
all licenses entered into in connection therewith and damages and
payments for past or future infringements thereof, (iii) the
right to sue for past, present and future infringements thereof,
and (iv) all rights corresponding thereto throughout the world
(all of the foregoing trademarks, and trademark registrations,
trade names, service marks, service mark registration and
applications, together with the items described in clauses (i)
through (iv) in this subparagraph (a), are sometimes hereinafter
individually and/or collectively referred to as the
"Trademarks");
(b) license agreements with any other party in connection
with any Trademarks or such other party's trademarks or trademark
applications, whether the Borrower is a licensor or licensee
under any such license agreement, including, but not limited to,
the license agreements listed on Annex II attached hereto and
made a part hereof, and the right to prepare for sale, sell and
advertise for sale, all of the inventory now or hereafter owned
by the Borrower and now or hereafter covered by such license
agreements (all of the foregoing being hereinafter referred to
collectively as the "Licenses").
(c) the goodwill of the Borrower's business connected with
and symbolized by the Trademarks;
The Trademarks, Licenses and the goodwill referred to above are
hereinafter collectively called the "Collateral".
3. Restrictions on Future Agreements.
The Borrower agrees that until all the Obligations shall
have been satisfied in full and the Credit Agreement shall have
been terminated, the Borrower will not, without the Agent's prior
written consent, abandon any Trademark, except as would not have
a material adverse effect on the business of the Borrower, or
enter into any agreement, including, without limitation, any
license agreement (other than as necessary to maintain or protect
any Trademark), which is inconsistent with the Borrower's
obligations under this Trademark Security Agreement, and the
Borrower further agrees that it will not take any action, or
permit any action to be taken by any other Persons to the extent
that such Persons are subject to its control, including
licensees, or fail to take any action, which would affect the
validity, priority, perfection or enforcement of the rights
transferred to the Agent under this Trademark Security Agreement,
and any such agreement or action if it shall take place shall be
null and void and of no effect whatsoever. Nothing in this
Section 3 shall be deemed to prevent the Borrower from engaging
in transactions permitted under Section 8.02(a)(v) of the Credit
Agreement.
4. New Trademarks.
The Borrower represents and warrants that the Trademarks and
Licenses listed on Annexes I and II constitute all of the
significant trademarks, applications, trade names, service marks,
service mark registrations and trademark registrations now owned
and license agreements entered into by the Borrower. If, before
the Obligations shall have been satisfied in full, the
commitments of the Lenders to extend credit under the Credit
Agreement shall have been terminated and the Credit Agreement
shall have been terminated, the Borrower shall, after the date
hereof, (i) obtain rights to any new trademarks, trademark
registrations, trademark applications, service marks, service
mark registrations, or trade names, (ii) become entitled to the
benefit of any trademarks, trademark registrations, trademark
applications, trade names, service marks, service mark
registrations, trademark licenses or trademark license renewals
or (iii) enter into any new trademark license agreements, the
provisions of paragraph 2 above shall automatically apply
thereto, and the Borrower shall give to the Agent prompt written
notice thereof. The Borrower hereby authorizes the Agent to
modify this Trademark Security Agreement by amending Annex I or
II to include any future trademarks, trademark applications,
trade names, service marks, service mark registrations, trademark
registrations or license agreements that are the Trademark or the
Licenses, under paragraph 2 above or under this paragraph 4.
5. Additional Representations and Warranties.
The Borrower hereby represents, warrants, covenants and
agrees that:
(a) Except as otherwise provided or permitted herein or in
the Credit Agreement, it is and will continue to be the owner of
all its right, title and interest in the Collateral so long as
the Trademarks and Licenses shall continue in force. The
Trademarks and Licenses are and shall continue to be free from
any Lien in favor of a Person except for those Liens permitted by
Section 8.02 of the Credit Agreement.
(b) It has the full right and power to grant the security
interest in the Collateral made hereby.
(c) It has made no previous assignment, transfer or
agreements in conflict herewith or constituting a present or
future assignment, transfer, or encumbrance on any of the
Collateral.
(d) So long as any Obligations remain outstanding under the
Credit Agreement, the commitments of the Lenders to extend credit
under the Credit Agreement have not been terminated and the
Credit Agreement has not terminated, it will not execute, and
there will not be on file in any public office, any financing
statement or other document or instrument covering the Collateral
except as otherwise contemplated or permitted hereby or by the
Credit Agreement and the other Loan Documents.
(e) Subject to any limitation stated therein or in
connection therewith, all information furnished to the Agent
concerning the Collateral and proceeds thereof, for the purpose
of obtaining credit or an extension of credit, is, or will be at
the time the same is furnished, accurate and correct in all
material respects.
(f) To the best of the Borrower's knowledge and belief
following diligent inquiry, no infringement or unauthorized use
presently is being made of any of the Trademarks or Licenses
which has or may reasonably be expected to have, alone or in the
aggregate, a Material Adverse Effect. The Borrower has advised
the Agent of (i) the existence of restrictions on the use of the
Trademark and Licenses as may be contained in the Borrower's
franchise agreements and license agreements relating to the use
of the Trademarks and Licenses and (ii) its trademark monitoring
and enforcement practice.
6. Royalties; Term.
The Borrower hereby agrees that any rights granted hereunder
to the Agent for the benefit of the Agent, the Lenders and the
Issuing Banks with respect all the Collateral as described above
shall be worldwide and without any liability for royalties or
other related charges from the Agent to the Borrower. The term
of the security interest granted herein shall extend until the
earlier of (i) the expiration or abandonment of each of the
Trademarks and Licenses subject to this Trademark Security
Agreement, or (ii) the date on which all the Obligations have
been paid in full, the commitments of the Lenders to extend
credit under the Credit Agreement have been terminated and the
Credit Agreement has been terminated.
7. The Agent's Right to Inspect.
The Agent and the Lenders shall have the right, at any time
and from time to time, to inspect the Borrower's premises and to
examine the Borrower's books, records and operations, including,
without limitation, the Borrower's merchandise quality control
processes upon reasonable notice and at such reasonable times and
as often as may be reasonably requested. The Borrower agrees (i)
not to sell or assign its interest in, or grant any license
under, the Collateral without the prior written consent of the
Agent except as otherwise permitted under Sections 8.02 and 8.03
of the Credit Agreement; and (ii) to maintain the quality of any
and all merchandise in connection with which the Trademarks are
used, consistent with or better than the quality of said
merchandise as of the date hereof.
8. Termination of Security Interest.
This Trademark Security Agreement is made for collateral
purposes only. Upon payment in full of the Obligations and upon
termination of the Credit Agreement, the Agent shall, at the
Borrower's sole cost and expense, execute and deliver to the
Borrower all termination statements or other instruments as may
be necessary or proper to re-vest in the Borrower (without
recourse to or warranty by the Agent) full title to the
Collateral granted hereby, subject to any disposition thereof
which may have been made by the Agent pursuant hereto or pursuant
to the Credit Agreement.
9. Duties of the Borrower.
The Borrower shall have the duty (i) to prosecute diligently
any trademark application that is part of the Trademarks pending
as of the date hereof or thereafter until the obligations shall
have been paid in full, (ii) to make applications on trademarks,
as appropriate, and (iii) to preserve and maintain all rights in
trademark applications, trademarks, trademark registrations,
service marks, and service mark registrations, that are part of
the Trademarks except, in the case of (i) or (iii), where the
failure to do so would not have or be reasonably expected to have
a Material Adverse Effect. Any expenses incurred in connection
with such applications shall be borne by the Borrower. The
Borrower agrees to retain an experienced trademark attorney for
the filing and prosecution of all such applications and other
proceedings. The Borrower shall not abandon any right to file a
trademark application in the United States or any pending
trademark application in any country without the prior written
consent of the Agent except as would not have or be reasonably
expected to have a Material Adverse Effect. If the Borrower
fails to comply with any of the foregoing duties, the Agent shall
have the right (but shall not be obligated) to do so in the
Borrower's name to the extent permitted by law, but at the
Borrower's expense, and the Borrower hereby agrees to reimburse
the Agent in full for all expenses, including the fees and
disbursements of counsel incurred by the Agent in protecting,
defending and maintaining the Collateral. In the event that the
Borrower shall fail to pay when due any fees required to be paid
by it hereunder, or shall fail to discharge any Lien prohibited
hereby, or shall fail to comply with any other duty hereunder,
the Agent may, but shall not be required to, pay, satisfy,
discharge or bond the same for the account of the Borrower, and
all monies so paid out shall be Obligations of the Borrower
repayable on demand, together with interest at the fluctuating
rate applicable to Base Rate Loans under the Credit Agreement.
10. The Agent's Right to Sue.
From and after the occurrence and during continuance of an
Event of Default, the Agent shall have the right, but shall in no
way be obligated, to bring suit in its own name for its own
benefit and for the benefit of the Lenders and the Issuing Banks
to enforce the Trademarks and Licenses, and if the Agent shall
commence any such suit, the Borrower shall, at the request of the
Agent, do any and all lawful acts and execute any and all proper
documents required by the Agent in aid of such enforcement. The
Borrower shall, upon demand, promptly reimburse the Agent for all
costs and expenses incurred by Agent pursuant to the terms of the
Credit Agreement.
11. Waivers.
No course of dealing among the Borrower, the Agent, the
Lenders, the Issuing Banks or any of them, and no failure to
exercise, nor any delay in exercising, on the part of the Agent,
the Lenders or the Issuing Banks, any right, power or privilege
hereunder or under the Credit Agreement shall operate as a waiver
thereof; nor shall any single or partial exercise of any right,
power or privilege hereunder or thereunder preclude any other or
further exercise thereof the exercise of any other right, power
or privilege.
12. Severability.
The provisions of this Trademark Security Agreement are
severable, and if any clause or provision shall be held invalid
and unenforceable in whole or in part in any jurisdiction, then
such invalidity or unenforceability shall affect only such clause
or provision or part thereof, in such jurisdiction, and shall not
in an manner affect such clause or provision in any other
jurisdiction, or any other clause or provision of this Trademark
Security Agreement in any jurisdiction.
13. Modification.
This Trademark Security Agreement cannot be altered, amended
or modified in any way, except as specifically provided in
paragraph 4 hereof or by a writing signed by the parties hereto.
14. Cumulative Remedies; Power of Attorney; Effect On Other
Agreements.
All of the Agent's rights and remedies with respect to the
Collateral, whether established hereby, by the Credit Agreement,
by the Collateral Documents, by any other agreements or by law
shall be cumulative and may be exercised singularly or
concurrently. Upon the occurrence and during the continuance of
an Event of Default and the giving by the Agent of written notice
to the Borrower of the Agent's intention to enforce its right and
claims against the Borrower, the Borrower hereby authorizes the
Agent to make, constitute and appoint any officer or agent of the
Agent as the Agent may select, in its sole discretion, as the
Borrower's true and lawful attorney-in-fact, with power (but not
the obligation) to (i) endorse the Borrower's name on all
applications, documents, papers and instruments necessary or
desirable for the Agent in the use of the Collateral, or (ii)
take any other actions with respect to the Collateral as the
Agent deems in the best interest of the Agent, the Lenders and
the Issuing Banks or (iii) grant or issue any exclusive or
non-exclusive license under the Collateral to anyone, or (iv)
assign, pledge, convey or otherwise transfer title in or dispose
of the Collateral to anyone free and clear of any encumbrance
upon title thereof (other than any encumbrance created hereby).
The Borrower hereby ratifies all that such attorney shall
lawfully do or cause to be done by virtue hereof. This power of
attorney shall be irrevocable until the Obligations have been
paid in full, the commitments of the Lenders to extend credit
under the Credit Agreement have been terminated and the Credit
Agreement has been terminated. The Borrower acknowledges and
agrees that this Trademark Security Agreement is not intended to
limit or restrict in any way the rights and remedies of the Agent
and the Lender under the Loan Documents but rather is intended to
facilitate the exercise of such rights and remedies. The Agent,
the Lenders and the Issuing Banks shall have, in addition to all
other rights and remedies given it by the terms of this Trademark
Security Agreement, all rights and remedies allowed by law and
the rights and remedies of a secured party under the Uniform
Commercial Code as enacted in any jurisdiction in which the
Collateral may be located. Recourse to security will not be
required at any time.
15. Binding Effect; Benefits.
This Trademark Security Agreement shall be binding upon the
Borrower and its successors and assigns, and shall inure to the
benefit of the Agent, the Lenders and the Issuing Banks. The
Borrower's successors and assigns shall include, without
limitation, a receiver, trustee or debtor-in-possession of or for
the Borrower.
16. Notices.
Any notices and other communications hereunder shall be
given in the manner and to the addresses set forth in the Credit
Agreement.
17. Choice of Law.
This Trademark Security Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
18. Consent to Jurisdiction and Service of Process; Waiver
of Jury Trial.
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST THE BORROWER WITH
RESPECT TO THIS TRADEMARK SECURITY AGREEMENT OR ANY NOTE OR ANY
OTHER LOAN DOCUMENT MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT
OF COMPETENT JURISDICTION IN THE STATE OF NEW YORK, AND BY
EXECUTION AND DELIVERY OF THIS TRADEMARK SECURITY AGREEMENT, THE
BORROWER ACCEPTS, FOR ITSELF AND IN CONNECTION WITH ITS
PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE NONEXCLUSIVE
JURISDICTION OF THE AFORESAID COURTS, AND IRREVOCABLY AGREES TO
BE BOUND BY ANY FINAL JUDGMENT RENDERED THEREBY IN CONNECTION
WITH THIS TRADEMARK SECURITY AGREEMENT OR ANY NOTE OR ANY OF THE
OTHER LOAN DOCUMENTS FROM WHICH NO APPEAL HAS BEEN TAKEN OR IS
AVAILABLE. THE BORROWER IRREVOCABLY CONSENTS TO THE SERVICE OF
PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR
PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR
CERTIFIED MAIL, POSTAGE PREPAID, TO ITS NOTICE ADDRESS SPECIFIED
ON THE FIRST PAGE HEREOF, SUCH SERVICE TO BECOME EFFECTIVE TEN
(10) DAYS AFTER SUCH MAILING. EACH OF BORROWER, THE AGENT AND
THE LENDERS IRREVOCABLY WAIVES (A) TRIAL BY JURY IN ANY ACTION OR
PROCEEDING WITH RESPECT TO THIS TRADEMARK SECURITY AGREEMENT OR
ANY OTHER LOAN DOCUMENT, AND (B) ANY OBJECTION (INCLUDING WITHOUT
LIMITATION, ANY OBJECTION OF THE LAYING OF VENUE OR BASED ON THE
GROUNDS OF FORUM NON CONVENIENS) WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING WITH
RESPECT TO THIS TRADEMARK SECURITY AGREEMENT OR ANY OTHER LOAN
DOCUMENT IN ANY JURISDICTION SET FORTH ABOVE. NOTHING HEREIN
SHALL AFFECT THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR SHALL LIMIT THE RIGHT OF ANY LENDER TO BRING
PROCEEDINGS AGAINST BORROWER IN THE COURTS OF ANY OTHER
JURISDICTION.
19. Waiver of Notice, Hearing and Bond.
THE BORROWER WAIVES ALL RIGHTS TO NOTICE AND HEARING OF ANY
KIND PRIOR TO THE EXERCISE BY THE AGENT OR THE LENDERS OF ITS
RIGHTS, FROM AND AFTER THE OCCURRENCE OF AN EVENT OF DEFAULT, TO
REPOSSESS THE COLLATERAL WITH JUDICIAL PROCESS OR TO REPLEVY,
ATTACH OR LEVY UPON THE COLLATERAL. THE BORROWER WAIVES THE
POSTING OF ANY BOND OTHERWISE REQUIRED OF THE AGENT OR THE
LENDERS IN CONNECTION WITH THE JUDICIAL PROCESS OR PROCEEDING TO
OBTAIN POSSESSION OF, REPLEVY, ATTACH, OR LEVY UPON THE
COLLATERAL TO ENFORCE ANY JUDGMENT OR OTHER COURT ORDER ENTERED
IN FAVOR OF THE AGENT OR THE LENDER OR TO ENFORCE BY SPECIFIC
PERFORMANCE, TEMPORARY RESTRAINING ORDER PRELIMINARY OR PERMANENT
INJUNCTION, THIS TRADEMARK SECURITY AGREEMENT.
20. Advice of Counsel.
THE BORROWER REPRESENTS TO THE AGENT THAT IT HAS DISCUSSED
THIS TRADEMARK SECURITY AGREEMENT WITH ITS ATTORNEYS.
21. Governing Provisions.
To the extent any provisions of this Trademark Security
Agreement are inconsistent with any provisions in the Borrower
Security Agreement, the provisions of this Trademark Security
Agreement shall govern.
22. Section Titles.
The section titles herein are for convenience and reference
only and shall not affect in any way the-interpretation of any of
the provisions hereof.
IN WITNESS WHEREOF, the Borrower has duly executed this
Agreement as of the day first above written.
ANNTAYLOR, INC.
By: /s/ Walter J. Parks
_
Title:Sr. Vice President - Finance
Attest:
/s/Charles M. Fox
__________________
Agreed and accepted to as of
the date first above written:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Agent
By: /s/ Dietmas Schiel
_
Title: Vice President
_
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
The foregoing Trademark Security Agreement was
executed and acknowledged before me this 29th day of September,
1995, by Walter J. Parks personally known to me to be the Senior
Vice President - Finance of AnnTaylor, Inc., a Delaware
corporation, on behalf of such corporation.
(SEAL)
/s/ Lars J. Hanson
------------------------
Notary Public
New York County, New York
My Commission Expires:
September 8, 1996
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
The foregoing Trademark Security Agreement was
executed and acknowledged before me this 29th day of September,
1995, by Dietmas Schiel personally known to me to be the Vice
President of Bank of America National Trust and Savings
Association, a national banking association, on behalf of such
corporation.
(SEAL)
/s/ Lars J. Hanson
------------------------
Notary Public
New York County, New York
My Commission Expires:
September 8, 1996
Annex I
to
Trademark Security Agreement
_______________
Dated as of September 29, 1995
Trademarks and Trademark Applications
U.S. Registered Trademarks:
Trademark Registration No. Issue Date
Expiration/Renewal Date
ANNTAYLOR. (Stylized) 1,770,157 05/11/93
05/11/03
ANN TAYLOR 1,444,585 06/23/87 06/23/07
ANN TAYLOR 1,251,717 09/20/83 09/20/03
ANNTAYLOR. 1,789,470 08/24/93 08/24/03
(Stylized)
ANNTAYLOR. 1,832,503 04/19/94 04/19/04
(Stylized)
AnnTaylor. 1,854,221 09/13/94 09/13/04
(Stylized)
ANNTAYLOR. 1,881,093 02/28/95 02/28/05
DESTINATION 1,875,773 01/24/95 01/24/05
(not stylized)
DESTINATION ANNTAYLOR 1,804,908 11/16/93
11/16/03
(not stylized)
destination ANNTAYLOR. 1,811,236 12/14/93
12/14/03
(stylized)
AT denim (logo design) 1,817,468 01/18/94
01/18/04
AT DENIM. 1,826,976 03/15/94 03/15/04
ANNTAYLOR. 1,782,601 07/20/93 07/20/03
ANNTAYLOR. 1,832,187 04/19/94 04/19/04
(stylized)
U.S. Trademark Applications:
Trademark Serial No. File Date
AT ANNTAYLOR. ORIGINALS - CLASSIC 74/304,148
08/12/92
STYLE (and design)
AT ANNTAYLOR. IRIGINALS - CLASSIC 74/304/144
8/12/92
STYLE (and design)
DESTINATION 74/493,760 02/23/94
ACTION 74/601,938 11/22/94
ACTION 74/601,976 11/22/94
ACTION (and Design) 74/601,941 11/22/94
ACTION (and Design) 74/601,937 11/22/94
ACTION (and Design) 74/601,939 11/22/94
ANNTAYLOR. LOFT (stylized) 74/585,175 10/13/94
THE SHOE LOFT (stylized) 74/654,336 03/31/95
Foreign Registered Trademarks:
Trademark and Country Registration No. Issue Date
Expiration/Renewal Date
Ann Taylor/Canada TMA381,405 03/20/86 03/20/01
Ann Taylor1/Japan 1973145 07/23/87 07/23/97
Ann Taylor/Japan 2322093 07/31/91 07/31/01
Ann Taylor1/Japan 2322094 07/31/91 07/31/01
Ann Taylor./Japan 2461709 09/30/92 09/30/02
Ann Taylor1/Japan 2461710 09/30/92 09/30/02
Ann Taylor./Japan 2451513 08/31/92 08/31/02
Ann Taylor1/Japan 2451514 08/31/92 08/31/02
Ann Taylor./Japan 2389850 03/31/92 03/31/02
Ann Taylor1/Japan 2389851 03/31/92 03/31/02
AnnTaylor./Brazil 817167129 11/15/94 11/15/04
ATDENIM./Brazil 817401985 01/24/95 01/23/05
ATDENIM/Canada 08/18/95
AnnTaylor/Hong Kong 01800/1995 06/25/93
06/25/14
AnnTaylor 2700331 11/30/94 11/30/04
(English)/Japan
AmmTaylor 2700332 11/30/94 11/30/04
(Katakana)/Japan
AnnTaylor 316507 06/30/95 06/30/05
(Korean)/Korea
ANN TAYLOR/Taiwan 521793 05/01/91 04/30/01
Foreign Trademark Applications:
Trademark and Country Serial No. File Date
Ann Taylor/Taiwan2 79/48075 11/05/90
AnnTaylor/Japan 15005/1989 02/10/89
AnnTaylor1/Japan 15006/1989 02/10/89
Ann Taylor/Hong Kong3 9156/90 11/13/90
AnnTaylor./Brazil4 817167129 04/01/93
1 In Katakana.
2 Updating status on application.
3 Application for "Ann Taylor" in Hong Kong is being withdrawn
and refiled pursuant to the requirements of the Hong Kong
trademark authority.
4 Application for "Ann Taylor" in Brazil is being amended to
show mark as "AnnTaylor.". If it cannot be amended, it will
be withdrawn and refiled.
Annex II
to
Trademark Security Agreement
Dated as of September 29, 1995
License Agreements
None.
098888\0048\00067\959LG3XD.GUA
- -
098888\0048\00067\959LG3XD.GUA
- -
EXECUTION COPY
ATSC GUARANTY
THIS AMENDED AND RESTATED GUARANTY (as such agreement may be
amended, supplemented or otherwise modified from time to time,
this "Guaranty") dated as of September 29, 1995 is made by
ANNTAYLOR STORES CORPORATION, a Delaware corporation, with its
principal place of business at 142 West 57th Street, New York,
New York 10019 (the "Guarantor"), in favor of BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION, with an office at 1455
Market Street, San Francisco, California 94103, in its capacity
as Agent under the "Credit Agreement" (as defined below) (the
"Agent").
R E C I T A L S:
ANNTAYLOR, INC., a Subsidiary of the Guarantor, (the
"Borrower"), the Agent, BA Securities, Inc., as Arranger, Bank of
America National Trust and Savings Association and Fleet Bank,
National Association, as Co-Agents, and certain financial
institutions currently and in the future parties to the Credit
Agreement (such financial institutions being collectively, the
"Lenders") have entered into a certain Amended and Restated
Credit Agreement dated as of September 29, 1995 (as such
agreement may be amended, supplemented or otherwise modified from
time to time, the "Credit Agreement"; the capitalized terms not
otherwise defined herein are being used herein as defined in the
Credit Agreement), which provides for the Lenders to make Loans
to the Borrower and for the Issuing Banks to issue Letters of
Credit. The Credit Agreement amends and restates the existing
credit agreement, dated as of July 29, 1994, as amended, among
the parties thereto, which existing credit agreement is
guaranteed by the Guaranty, dated as of July 29, 1994 (the
"Existing Guaranty"). It is a condition precedent to the
effectiveness of the Credit Agreement that the Existing Guaranty
be amended and restated as set forth herein.
NOW, THEREFORE, in consideration of the above premises, and
in order to induce the Lenders to make the Loans and the Issuing
Banks to issue the Letters of Credit under the Credit Agreement,
the Guarantor agrees, and the Agent, by acceptance hereof, hereby
agrees, that the Existing Guaranty is hereby amended and restated
in its entirety as follows:
1. Guaranty.
(a) The Guarantor hereby unconditionally and irrevocably
guarantees to the Agent, for its benefit and the benefit of the
Lenders and the Issuing Banks, the full and prompt payment when
due, whether at maturity or earlier, by reason of acceleration,
mandatory prepayment or otherwise, and in accordance with the
terms and conditions of the Credit Agreement, of all of the
Obligations, whether or not from time to time reduced or
extinguished or hereafter increased or incurred, whether or not
recovery may be or hereafter may become barred by any statute of
limitations, and whether enforceable or unenforceable as against
the Borrower, now or hereafter existing, or due or to become due
(all such indebtedness, liabilities and obligations being
hereinafter collectively referred to as the "Guaranteed
Obligations").
(b) The Guarantor further agrees that, if any payment made
by the Borrower or any other person and applied to the Guaranteed
Obligations is at any time annulled, set aside, rescinded,
invalidated, declared to be fraudulent or preferential or
otherwise required to be refunded or repaid, or the proceeds of
Collateral are required to be returned by the Agent, any of the
Lenders or the Issuing Banks to the Borrower, its estate,
trustee, receiver or any other party, including, without
limitation, the Guarantor, under any bankruptcy law, state or
federal law, common law or equitable cause, then, to the extent
of such payment or repayment, the Guarantor's liability hereunder
(and any lien, security interest or other collateral securing
such liability) shall be and remain in full force and effect, as
fully as if such payment had never been made, or, if prior
thereto this Guaranty shall have been cancelled or surrendered
(and if any lien, security interest or other collateral securing
Guarantor's liability hereunder shall have been released or
terminated by virtue of such cancellation or surrender), this
Guaranty (and such lien, security interest or other collateral)
shall be reinstated in full force and effect, and such prior
cancellation or surrender shall not diminish, release, discharge,
impair or otherwise affect the obligations of the Guarantor in
respect of the amount of such payment (or any lien, security
interest or other collateral securing such obligation).
(c) The Guarantor further agrees to pay all costs and
expenses upon demand including, without limitation, all court
costs and reasonable attorneys' fees and expenses paid or
incurred by the Agent (i) in endeavoring to collect all or any
part of the Guaranteed Obligations after the same become due and
owing from, or in prosecuting any action against, the Guarantor
or any other guarantor of all or any part of the Guaranteed
Obligations or (ii) in endeavoring to realize upon (whether by
judicial, non-judicial or other proceedings) any Collateral or
any other collateral securing Guarantor's liabilities under this
Guaranty.
2. Representations and Warranties.
The Guarantor hereby represents and warrants to the Agent
that each representation and warranty made by Borrower in Article
V of the Credit Agreement applicable to the Guarantor is true and
correct, which representations and warranties (except such
representations and warranties which are expressly made as of a
different date) shall survive the execution and delivery of this
Guaranty, and shall, except to the extent that the same have been
modified by a writing delivered to and accepted in writing by the
Agent, and, other than with respect to changes permitted or
contemplated by the Credit Agreement, continue to be true and
correct on the date of each Loan, and on the date of issuance of
each Letter of Credit.
3. Waivers; Other Agreements.
(a) The Agent is hereby authorized, without notice to or
demand upon the Guarantor, which notice or demand is expressly
waived hereby, and without discharging or otherwise affecting the
obligations of the Guarantor hereunder (which shall remain
absolute and unconditional notwithstanding any such action or
omission to act), from time to time, to:
(i) supplement, renew, extend, accelerate or otherwise
change the time for payment of, or other terms relating to,
the Guaranteed Obligations, or otherwise modify, amend or
change the terms of any promissory note or other agreement,
document or instrument (including the Credit Agreement and
the other Loan Documents) now or hereafter executed by the
Borrower and delivered to the Agent, including, without
limitation, any increase or decrease of the rate of interest
thereon;
(ii) waive or otherwise consent to noncompliance with
any provision of any instrument evidencing the Guaranteed
Obligations, or any part thereof, or any other instrument or
agreement in respect of the Guaranteed Obligations
(including the Credit Agreement and the other Loan
Documents) now or hereafter executed by the Borrower and
delivered to the Agent;
(iii) accept partial payments on the Guaranteed
Obligations;
(iv) receive, take and hold additional security or
collateral for the payment of the Guaranteed Obligations, or
for the payment of any other guaranties of the Guaranteed
Obligations or other liabilities of the Borrower, and
exchange, enforce, waive, substitute, liquidate, terminate,
abandon, fail to perfect, subordinate, transfer, otherwise
alter and release any such additional security or
collateral;
(v) apply any and all such security or collateral and
direct the order or manner of sale thereof as the Agent may
determine in its sole discretion;
(vi) settle, release, compromise, collect or otherwise
liquidate the Guaranteed Obligations or accept, substitute,
release, exchange or otherwise alter, affect or impair any
security or collateral for the Guaranteed Obligations or any
other guaranty therefor, in any manner;
(vii) add, release or substitute any one or more other
guarantors, makers or endorsers of the Guaranteed
Obligations and otherwise deal with the Borrower or any
other guarantor, maker or endorser as the Agent may elect in
its sole discretion;
(viii) apply any and all payments or recoveries from
the Borrower, from any other guarantor, maker or endorser of
the Guaranteed Obligations or from the Guarantor to the
Guaranteed Obligations to the Obligations in such order as
provided in subsection 2.06(b) of the Credit Agreement,
whether such Guaranteed Obligations are secured or unsecured
or guaranteed or not guaranteed by others;
(ix) apply any and all payments or recoveries from the
Guarantor or any other guarantor, maker or endorser of the
Guaranteed Obligations or sums realized from security
furnished by any of them upon any of their indebtedness or
obligations to the Agent as the Agent in its sole
discretion, may determine, whether or not such indebtedness
or obligations relate to the Guaranteed Obligations; and
(x) refund at any time, at the Agent's sole
discretion, any payment received by the Agent in respect of
any Guaranteed Obligations, and payment to the Agent of the
amount so refunded shall be fully guaranteed hereby even
though prior thereto this Guaranty shall have been cancelled
or surrendered (or any release or termination of any
collateral by virtue thereof) by the Agent, and such prior
cancellation or surrender shall not diminish, release,
discharge, impair or otherwise affect the obligations of the
Guarantor hereunder in respect of the amount so refunded
(and any collateral so released or terminated shall be
reinstated with respect to such obligations);
even if any right of reimbursement or subrogation or other right
or remedy of the Guarantor is extinguished, affected or impaired
by any of the foregoing (including, without limitation, any
election of remedies by reason of any judicial, non-judicial or
other proceeding in respect of the Guaranteed Obligations which
impairs any subrogation, reimbursement or other right of
Guarantor).
(b) The Guarantor hereby agrees that its obligations under
this Guaranty are absolute and unconditional and shall not be
discharged or otherwise affected as a result of:
(i) the invalidity or unenforceability of any security
for or other guaranty of the Guaranteed Obligations or of
any promissory note or other document (including, without
limitation, the Credit Agreement) evidencing all or any part
of the Guaranteed Obligations, or the lack of perfection or
continuing perfection or failure of priority of any security
for the Guaranteed Obligations or any other guaranty
therefor;
(ii) the absence of any attempt to collect the
Guaranteed Obligations from the Borrower or any other
guarantor or other action to enforce the same;
(iii) failure by the Agent to take any steps to
perfect and maintain any security interest in, or to
preserve any rights to, any security or collateral for the
Guaranteed Obligations or any other guaranty therefor;
(iv) the Agent's election, in any proceeding instituted
under Chapter 11 of Title 11 of the United States Code (11
U.S.C. 101 et seq.) (the "Bankruptcy Code"), of the
application of Section 1111(b)(2) of the Bankruptcy Code;
(v) any borrowing or grant of a security interest by
the Borrower, as debtor-in-possession, or extension of
credit, under Section 364 of the Bankruptcy Code;
(vi) the disallowance, under Section 502 of the
Bankruptcy Code, of all or any portion of the Agent's
claim(s) for repayment of the Guaranteed Obligations;
(vii) any use of cash collateral under Section 363 of
the Bankruptcy Code;
(viii) any agreement or stipulation as to the
provision of adequate protection in any bankruptcy
proceeding;
(ix) the avoidance of any lien in favor of the Agent
for any reason;
(x) any bankruptcy, insolvency, reorganization,
arrangement, readjustment of debt, liquidation or
dissolution proceeding commenced by or against Borrower, the
Guarantor or any other guarantor, maker or endorser,
including without limitation, any discharge of, or bar or
stay against collecting, all or any of the Guaranteed
Obligations (or any interest thereon) in or as a result of
any such proceeding;
(xi) failure by the Agent to file or enforce a claim
against the Borrower or its estate in any bankruptcy or
insolvency case or proceeding;
(xii) any action taken by the Agent that is authorized
by this Guaranty;
(xiii) any election by the Agent under Section
9-501(4) of the Uniform Commercial Code as enacted in any
relevant jurisdiction (the "Code") as to any security for
the Guaranteed Obligations or any guaranty of the Guaranteed
Obligations; or
(xiv) any other circumstance which might otherwise
constitute a legal or equitable discharge or defense of a
guarantor.
(c) The Guarantor hereby waives:
(i) any requirements of diligence or promptness on the
part of the Agent;
(ii) presentment, demand for payment or performance and
protest and notice of protest with respect to the Guaranteed
Obligations;
(iii) notices (A) of nonperformance, (B) of acceptance
of this Guaranty, (C) of default in respect of the
Guaranteed Obligations, (D) of the existence, creation or
incurrence of new or additional indebtedness, arising either
from additional loans extended to the Borrower or otherwise,
(E) that the principal amount, or any portion thereof,
and/or any interest on any instrument or document evidencing
all or any part of the Guaranteed Obligations is due, (F) of
any and all proceedings to collect from the Borrower, any
endorser or any other guarantor of all or any part of the
Guaranteed Obligations, or from anyone else, and (G) of
exchange, sale, surrender or other handling of any security
or collateral given to the Agent to secure payment of the
Guaranteed Obligations or any guaranty therefor;
(iv) any right to require the Agent to (a) proceed
first against the Borrower, or any other person whatsoever,
(b) proceed against or exhaust any security given to or held
by the Agent in connection with the Guaranteed Obligations,
or (c) pursue any other remedy in the Agent's power
whatsoever;
(v) any defense arising by reason of (a) any
disability or other defense of the Borrower, (b) the
cessation from any cause whatsoever of the liability of the
Borrower, (c) any act or omission of the Agent or others
which directly or indirectly, by operation of law or
otherwise, results in or aids the discharge or release of
the Borrower or any security given to or held by the Agent
in connection with the Guaranteed Obligations;
(vi) any and all other suretyship defenses under
applicable law; and
(vii) the benefit of any statute of limitations
affecting the Guaranteed Obligations or the Guarantor's
liability hereunder or the enforcement hereof.
In connection with the foregoing, the Guarantor covenants that
this Guaranty shall not be discharged, except by complete
performance of the obligations contained herein.
(d) The Guarantor hereby assumes responsibility for keeping
itself informed of the financial condition of the Borrower, of
any and all endorsers and/or other guarantors of any instrument
or document evidencing all or any part of the Guaranteed
Obligations and of all other circumstances bearing upon the risk
of nonpayment of the Guaranteed Obligations or any part thereof
that diligent inquiry would reveal and the Guarantor hereby
agrees that the Agent shall not have any duty to advise the
Guarantor of information known to the Agent regarding such
condition or any such circumstances.
(e) Notwithstanding anything to the contrary in this
Guaranty, the Guarantor hereby irrevocably waives all rights
which may have arisen in connection with this Guaranty to be
subrogated to any of the rights (whether contractual, under the
Bankruptcy Code, including Section 509 thereof, under common law
or otherwise) of the Agent, the Lenders or the Issuing Banks
against the Borrower or against any collateral security or
guarantee or right of offset held by such Person for the payment
of the Obligations. The Guarantor hereby further irrevocably
waives all contractual, common law, statutory or other rights of
reimbursement, contribution, exoneration or indemnity (or any
similar right) from or against the Borrower or any other Person
which may have arisen in connection with this Guaranty. So long
as the Obligations remain outstanding, if any amount shall be
paid by or on behalf of the Borrower to the Guarantor on account
of any of the rights waived in this paragraph, such amount shall
be held by the Guarantor in trust, segregated from other funds of
such Guarantor, and shall, forthwith upon receipt by such
Guarantor, be turned over to the Agent in the exact form received
by the Guarantor (duly indorsed by the Guarantor to the Agent, if
required), to be applied against the Obligations, whether matured
or unmatured, in such order as the Agent may determine. The
provisions of this paragraph shall survive the term of this
Guaranty and the payment in full of the Obligations and the
termination of the commitments of the Lenders to extend credit
under the Credit Agreement.
(f) The Guarantor hereby agrees that any indebtedness of
the Borrower now or hereafter owing to the Guarantor is hereby
subordinated to all of the Guaranteed Obligations, whether
heretofore, now or hereafter created (the "Subordinated Debt"),
and that without the prior consent of the Agent, the Subordinated
Debt shall not be paid in whole or in part until the Guaranteed
Obligations have been paid in full, the commitments of the
Lenders to extend credit under the Credit Agreement have been
terminated and the Credit Agreement has been terminated and is of
no further force or effect, except that payments of principal and
interest on the Subordinated Debt shall be permitted so long as
no Potential Event of Default or Event of Default shall have
occurred and be continuing to the extent such payments would not
render the Borrower incapable of performing the Guaranteed
Obligations. The Guarantor will not accept any payment of or on
account of any Subordinated Debt at any time in contravention of
the foregoing. At the request of the Agent, the Borrower shall
pay to the Agent all or any part of the Subordinated Debt and any
amount so paid to the Agent shall be applied to payment of the
Guaranteed Obligations. Each payment on the Subordinated Debt
received in violation of any of the provisions hereof shall be
deemed to have been received by Guarantor as trustee for the
Agent and shall be paid over to the Agent immediately on account
of the Guaranteed Obligations, but without otherwise affecting in
any manner the Guarantor's liability under any of the provisions
of this Guaranty. The Guarantor agrees to file all claims
against the Borrower in any bankruptcy or other proceeding in
which the filing of claims is required by law in respect of any
Subordinated Debt, and the Agent shall be entitled to all of the
Guarantor's right thereunder. If for any reason the Guarantor
fails to file such claim at least thirty (30) days prior to the
last date on which such claim should be filed, the Agent, as the
Guarantor's attorney-in-fact, is hereby authorized to do so in
the Guarantor's name or, in the Agent's discretion, to assign
such claim to and cause proof of claim to be filed in the name of
the Agent or its nominee. In all such cases, whether in
administration, bankruptcy or otherwise, the person or persons
authorized to pay such claim shall pay to the Agent the full
amount payable on the claim in the proceeding, and, to the full
extent necessary for that purpose, the Guarantor hereby assigns
to the Agent all Guarantor's rights to any payments or
distributions to which the Guarantor otherwise would be entitled.
If the amount so paid is greater than the Guarantor's liability
hereunder, the Agent will pay the excess amount to the party
entitled thereto. In addition, the Guarantor hereby appoints
Agent as its attorney-in-fact to exercise all of the Guarantor's
voting rights in connection with any bankruptcy proceeding or any
plan for the reorganization of the Borrower.
(g) The Guarantor shall comply with all covenants
applicable to it under the Credit Agreement and shall otherwise
take no action which will cause an Event of Default or Potential
Event of Default under the Credit Agreement. The Guarantor shall
also cause the Borrower to comply with all covenants applicable
to the Borrower under the Credit Agreement.
4. Default, Remedies.
(a) The obligations of the Guarantor hereunder are
independent of and separate from the Guaranteed Obligations and
the obligations of any other guarantor of the Guaranteed
Obligations. If any of the Guaranteed Obligations are not paid
when due, or upon any Event of Default or any default by Borrower
as provided in any other instrument or document evidencing all or
any part of the Guaranteed Obligations, the Agent may, at its
sole election, proceed directly and at once, without notice,
against the Guarantor to collect and recover the full amount or
any portion of the Guaranteed Obligations, without first
proceeding against the Borrower or any other guarantor of the
Guaranteed Obligations, or against any Collateral for the
Guaranteed Obligations under the ATSC Pledge Agreement or
otherwise against any Collateral under other Collateral
Documents.
(b) At any time after maturity of the Guaranteed
Obligations, the Agent may, without notice to the Guarantor and
regardless of the acceptance of any security or collateral for
the payment hereof, appropriate and apply toward the payment of
the Guaranteed Obligations (i) any indebtedness due or to become
due from the Agent to the Guarantor and (ii) any moneys, credits
or other property belonging to the Guarantor at any time held by
or coming into the possession of the Agent or any of its
affiliates.
(c) The Guarantor hereby authorizes and empowers the Agent,
in its sole discretion, without any notice (except notices
required by law to the extent such notice as a matter of law may
not be waived) or demand to the Guarantor whatsoever and without
affecting the liability of the Guarantor hereunder, to exercise
any right or remedy which the Agent may have available to it,
including but not limited to, foreclosure by one or more judicial
or nonjudicial sales, and the Guarantor hereby waives any defense
to the recovery by the Agent against the Guarantor of any
deficiency after such action, notwithstanding any impairment or
loss of any right of reimbursement, contribution, subrogation or
other right or remedy against the Borrower, or any other
guarantor, maker or endorser, or against any security for the
Guaranteed Obligations or for any guaranty of the Guaranteed
Obligations. No exercise by the Agent of, and no omission of the
Agent to exercise, any power or authority recognized herein and
no impairment or suspension of any right or remedy of the Agent
against the Guarantor, any other guarantor, maker or endorser or
any security shall in any way suspend, discharge, release,
exonerate or otherwise affect any of the Guarantor's obligations
hereunder or give to the Guarantor any right of recourse against
the Agent, the Lenders or the Issuing Banks.
(d) The Guarantor consents and agrees that the Agent shall
not be under any obligation to make any demand upon or pursue or
exhaust any of its rights or remedies against the Borrower or any
guarantor or others with respect to the payment of the Guaranteed
Obligations, or to pursue or exhaust any of its rights or
remedies with respect to any security therefor, or any direct or
indirect guaranty thereof or any security for any such guaranty,
or to marshal any assets in favor of the Guarantor or against or
in payment of any or all of the Guaranteed Obligations or to
resort to any security or any such guaranty in any particular
order, and all of its rights hereunder, under the ATSC Pledge
Agreement and the other Loan Documents shall be cumulative. The
Guarantor hereby agrees to waive, and does hereby absolutely and
irrevocably waive and relinquish the benefit and advantage of,
and does hereby covenant not to assert against the Agent any
valuation, stay, appraisal, extension or redemption laws now
existing or which may hereafter exist which, but for this
provision, might be applicable to any sale made under the
judgment, order or decree of any court, or privately under the
power of sale conferred by this Guaranty or the ATSC Pledge
Agreement. Without limiting the generality of the foregoing, the
Guarantor hereby agrees that it will not invoke or utilize any
law which might cause delay in or impede the enforcement of the
rights under this Guaranty, the ATSC Pledge Agreement or any of
the other Loan Documents.
5. Miscellaneous.
(a) This Guaranty shall be irrevocable as to any and all of
the Guaranteed Obligations until the Credit Agreement has been
terminated, the commitments of the Lenders to extend credit under
the Credit Agreement have been terminated and all Guaranteed
Obligations then outstanding have been repaid.
(b) This Guaranty shall be binding upon the Guarantor and
upon its successors and assigns, heirs and legal representatives
and shall inure to the benefit of the Agent, the Lenders and the
Issuing Banks; all references herein to the Borrower and to the
Guarantor shall be deemed to include their successors and
assigns, heirs and legal representatives as applicable. The
Borrower's successors and assigns shall include a receiver,
trustee or debtor-in-possession of or for the Borrower. All
references to the singular shall be deemed to include the plural
where the context so requires. The Guarantor acknowledges the
Agent's acceptance hereof and reliance hereon.
(c) No delay on the part of the Agent in the exercise of
any right or remedy shall operate as a waiver thereof, and no
single or partial exercise by the Agent of any right or remedy
shall preclude any further exercise thereof; nor shall any
modification or waiver of any of the provisions of this Guaranty
be binding upon the Agent, except as expressly set forth in a
writing duly signed and delivered by the Agent or on the Agent's
behalf by an authorized officer or agent of the Agent. The
Agent's failure at any time or times hereafter to require strict
performance by the Borrower or of the Guarantor or any other
guarantor of any of the provisions, warranties, terms and
conditions contained in any promissory note, security agreement,
agreement, guaranty, instrument or document now or at any time or
times hereafter executed by the Borrower or the Guarantor or any
other guarantor and delivered to the Agent shall not waive,
affect or diminish any right of the Agent at any time or times
hereafter to demand strict performance thereof and such right
shall not be deemed to have been waived by any act or knowledge
of the Agent, its agents, officers or employees, unless such
waiver is contained in an instrument in writing signed by an
officer or agent of the Agent and directed to the Borrower or the
Guarantor, or either of them (as the case may be) specifying such
waiver. No waiver by the Agent of any default shall operate as a
waiver of any other default or the same default on a future
occasion, and no action by the Agent permitted hereunder shall in
any way affect or impair the Agent's rights or the obligations of
the Guarantor under this Guaranty. Any determination by a court
of competent jurisdiction of the amount of any principal and/or
interest owing by the Borrower to the Agent shall be conclusive
and binding on the Guarantor irrespective of whether it was a
party to the suit or action in which such determination was made.
(d) THIS GUARANTY SHALL BE CONSTRUED IN ALL RESPECTS IN
ACCORDANCE WITH, AND GOVERNED BY, THE LAWS OF THE STATE OF NEW
YORK. Whenever possible, each provision of this Guaranty shall
be interpreted in such a manner as to be effective and valid
under applicable law, but if any provision of this Guaranty shall
be prohibited by or invalid under applicable law, such provision
shall be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of such provisions
or the remaining provisions of this Guaranty.
(e) Consent to Jurisdiction and Service of Process; Waiver
of Jury Trial. ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST THE
GUARANTOR WITH RESPECT TO THIS GUARANTY MAY BE BROUGHT IN ANY
STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE OF
NEW YORK, AND BY EXECUTION AND DELIVERY OF THIS GUARANTY, THE
GUARANTOR ACCEPTS, FOR ITSELF IN AND IN CONNECTION WITH ITS
PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE NONEXCLUSIVE
JURISDICTION OF THE AFORESAID COURTS, AND IRREVOCABLY AGREES TO
BE BOUND BY ANY FINAL JUDGMENT RENDERED THEREBY IN CONNECTION
WITH THIS FROM WHICH NO APPEAL HAS BEEN TAKEN OR IS AVAILABLE.
THE GUARANTOR IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OF
ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING
BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL,
POSTAGE PREPAID, TO ITS NOTICE ADDRESS SPECIFIED ON THE FIRST
PAGE HEREOF, SUCH SERVICE TO BECOME EFFECTIVE TEN (10) DAYS AFTER
SUCH MAILING. EACH OF THE GUARANTOR AND, BY ACCEPTANCE HEREOF,
THE AGENT AND THE LENDERS, IRREVOCABLY WAIVES (A) TRIAL BY JURY
IN ANY ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY OR ANY
OTHER LOAN DOCUMENT, AND (B) ANY OBJECTION (INCLUDING WITHOUT
LIMITATION, ANY OBJECTION OF THE LAYING OF VENUE OR BASED ON THE
GROUNDS OF FORUM NON CONVENIENS) WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING WITH
RESPECT TO THIS GUARANTY IN ANY JURISDICTION SET FORTH ABOVE.
NOTHING HEREIN SHALL AFFECT THE RIGHT TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW.
(f) This Guaranty (and any instrument or agreement granting
or creating any security for this Guaranty) contains all the
terms and conditions of the agreement between the Agent and the
Guarantor relating to the subject matter hereof. The terms or
provisions of this Guaranty may not be waived, altered, modified
or amended except in writing duly executed by the party to be
charged thereby.
(g) Neither the Agent nor its Affiliates, directors,
officers, agents, attorneys or employees shall be liable to the
Guarantor for any action taken, or omitted to be taken, by it or
them or any of them under this Guaranty, or the other Loan
Documents or in connection therewith except that no person shall
be relieved of any liability for gross negligence or willful
misconduct as determined by a final judgment of a court of
competent jurisdiction.
(h) The Guarantor warrants and agrees that each of the
waivers set forth in this Guaranty are made with full knowledge
of their significance and consequences, and that under the
circumstances, the waivers are reasonable. If any of said
waivers are determined to be contrary to any applicable law or
public policy, such waivers shall be effective only to the
maximum extent permitted by law. Should any one or more
provisions of this Guaranty be determined to be illegal or
unenforceable, all other provisions hereof shall nevertheless
remain effective.
(i) Wherever possible each provision of this Guaranty shall
be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Guaranty shall be
prohibited by or invalid under such law, such provision shall be
ineffective to the extent of such prohibition or invalidity
without invalidating the remainder of such provision or the
remaining provisions of this Guaranty.
(j) Captions are for convenience only and shall not affect
the meaning of any term or provision of this Guaranty.
(k) All notices and other communications provided for
hereunder shall be given in the manner set forth in the Credit
Agreement and to the addresses set forth in the Credit Agreement
or, in the case of the Guarantor, at its addresses set forth
above.
IN WITNESS WHEREOF, undersigned have made this Guaranty as
of the date first above written.
ANNTAYLOR STORES CORPORATION
By: /s/ Walter J. Parks
Title: Sr. V.P. - Finance
Agreed and accepted to as of
the date first above written:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Agent
By: /s/ Dietmar Schiel
Title: Vice President
098888\0048\00067\959LG5H6.SCA
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098888\0048\00067\959LG5H6.SCA
- 21 -
EXECUTETION COPY
ATSC PLEDGE AGREEMENT
THIS AMENDED AND RESTATED SECURITY AND PLEDGE AGREEMENT (as
such agreement may be amended, supplemented or otherwise modified
from time to time, this "Agreement"), dated as of September 29,
1995, is made by ANNTAYLOR STORES CORPORATION, a Delaware
corporation, with its principal place of business located at 142
West 57th Street, New York, New York 10019 (the "Grantor"), in
favor of BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
with an office located at 1455 Market Street, San Francisco,
California 94103, in its capacity as Agent under the Credit
Agreement (as defined below) (the "Agent").
R E C I T A L S:
ANNTAYLOR, INC., a Subsidiary of the Grantor, (the
"Borrower"), the Agent, BA Securities, Inc., as Arranger, Bank of
America National Trust and Fleet Bank, National Association, as
Co-Agents, and certain financial institutions currently and in
the future to be parties to the Credit Agreement (such financial
institutions being collectively the "Lenders") have entered into
a certain Amended and Restated Credit Agreement dated as of
September 29, 1995, (as such agreement may be amended,
supplemented or otherwise modified from time to time, the "Credit
Agreement"; the capitalized terms not otherwise defined herein
are being used herein as defined in the Credit Agreement), which
provides for the Lenders to make the Loans and the Issuing Banks
to issue the Letters of Credit. The Credit Agreement amends and
restates an existing credit agreement among the parties thereto,
which existing credit agreement was guaranteed by the Grantor
pursuant to the Guaranty, dated as of July 29, 1994 (the
"Existing Guaranty"). The Existing Guaranty was secured pursuant
to the Pledge Agreement, dated as of July 29, 1994 (the "Existing
Pledge Agreement"), between the Grantor and the Agent. As a
condition precedent to the effectiveness of the Credit Agreement
(i) the Existing Guaranty is being amended and restated by the
Guaranty, dated as of the date hereof, by the Grantor in favor of
the Agent (as amended, supplemented or otherwise modified from
time to time, the "Guaranty") and (ii) the Existing Pledge
Agreement is being amended and restated in its entirety hereby.
NOW, THEREFORE, in consideration of the above premises and
in order to induce the Lenders to make the Loans and each Issuing
Bank to issue the Letters of Credit under the Credit Agreement,
the Grantor hereby agrees with the Agent for its benefit, and for
the benefit of the Lenders and the Issuing Banks, and the Agent,
by acceptance hereof, hereby agrees, that the Existing Pledge
Agreement is hereby amended and restated in its entirety as
follows:
Section 1. Grant of Security. To secure the prompt and
complete payment, observance and performance when due (whether at
the stated maturity, by acceleration or otherwise) of all the
Guaranteed Obligations (as defined in the Guaranty) and all other
obligations of the Grantor under the Guaranty, the Grantor hereby
assigns and pledges to the Agent, and hereby grants to the Agent,
for its benefit and the benefit of the Lenders and the Issuing
Banks, a security interest in, all of the Grantor's right, title
and interest in and to the following, whether now owned or
existing or hereafter arising or acquired and wheresoever located
(collectively, the "Collateral"):
EQUIPMENT: All machinery and equipment, all manufacturing,
distribution, selling, data processing and office equipment, all
furniture, furnishings, appliances, fixtures and trade fixtures,
tools, tooling, molds, dies, vehicles, vessels, aircraft and all
other goods of every type and description (other than
"inventory", as such term is defined in the Uniform Commercial
Code in effect on the date hereof in the State of New York (the
"UCC")), in each instance whether now owned or hereafter acquired
by the Grantor and wherever located (collectively, "Equipment");
GENERAL INTANGIBLES: All rights, interests, choses in
action, causes of action, claims and all other intangible
property of the Grantor of every kind and nature (other than
"accounts", as such term is defined in the UCC), in each instance
whether now owned or hereafter acquired by the Grantor,
including, without limitation, all corporate and other business
records; all loans, royalties, and other obligations receivable;
all inventions, designs, patents, patent applications, service
marks, trade names and trademarks (including any applications for
the foregoing and whether or not registered) and the goodwill of
the Grantor's business connected with and symbolized by such
trademarks, trade secrets, computer programs, software, printouts
and other computer materials, goodwill, registrations, U.S.
registered copyrights, licenses relating to trademarks and U.S.
registered copyrights, franchises, customer lists, credit files,
correspondence and advertising materials; all customer and
supplier contracts, firm sale orders, rights under license and
franchise agreements, and other contracts and contract rights;
all interests in partnerships, joint ventures and other entities;
all tax refunds and tax refund claims; all right, title and
interest under leases, subleases, licenses and concessions and
other agreements relating to real or personal property; all pay
ments due or made to the Grantor in connection with any
requisition, confiscation, condemnation, seizure or forfeiture of
any property by any person or governmental authority; all deposit
accounts (general or special) with any bank or other financial
institution; all credits with and other claims against carriers
and shippers; all rights to indemnification; all reversionary
interests in pension and profit sharing plans and reversionary,
beneficial and residual interest in trusts; all proceeds of
insurance of which the Grantor is beneficiary; and all letters of
credit, guaranties, liens, security interests and other security
held by or granted to the Grantor; and all other intangible
property, whether or not similar to the foregoing, including,
without limitation, all "general intangibles", as such term is
defined in the UCC (in each instance, however and wherever
arising, collectively, "General Intangibles");
CHATTEL PAPER, INSTRUMENTS AND DOCUMENTS: All chattel
paper, all instruments (including, without limitation, (a) the
shares of stock described in Annex I-A hereto (the "Pledged
Shares") and all dividends, instruments and other property from
time to time distributed in respect thereof or in exchange
therefor, and (b) the notes and debt instruments described in
Annex I-B hereto (the "Pledged Debt") and all payments thereunder
and instruments and other property from time to time delivered in
respect thereof or in exchange therefor), and all bills of
lading, warehouse receipts and other documents of title and
documents, including, without limitation, all "chattel paper",
"instruments" and documents", as such terms are defined in the
UCC, in each instance whether now owned or hereafter acquired by
the Grantor, other than any promissory note in an amount less
than $1,000,000 owing to the Grantor from a senior executive or
key employee of the Grantor (an "Excluded Note") (collectively,
"Chattel Paper, Instruments and Documents"); and
OTHER PROPERTY: All property or interests in property now
owned or hereafter acquired by the Grantor which now may be owned
or hereafter may come into the possession, custody or control of
the Agent, any of the Lenders, any Issuing Bank or any agent or
Affiliate of any of them in any way or for any purpose (whether
for safekeeping, deposit, custody, pledge, transmission,
collection or otherwise); and all rights and interests of the
Grantor, now existing or hereafter arising and however and
wherever arising, in respect of any and all (i) notes, drafts,
letters of credit, stocks, bonds, and debt and equity securities,
whether or not certificated, and warrants, options, puts and
calls and other rights to acquire or otherwise relating to the
same; (ii) money; (iii) proceeds of loans; and (iv) insurance
proceeds and books and records relating to any of the property
covered by this Agreement (collectively, "Other Property");
together, in each instance, with all accessions and additions
thereto, substitutions therefor, and replacements, proceeds and
products thereof.
Section 2. Grantor Remains Liable. Anything herein to the
contrary notwithstanding, the Grantor shall remain liable under
the contracts and agreements included in the Collateral to the
extent set forth therein to perform its duties and obligations
thereunder to the same extent as if this Agreement had not been
executed, (b) the exercise by the Agent of any of its rights
hereunder shall not release the Grantor from any of its duties or
obligations under the contracts and agreements included in the
Collateral (except to the extent that such exercise prevents the
Grantor from satisfying such duties and obligations), and (c) the
Agent shall not have any obligation or liability under the
contracts and agreements included in the Collateral by reason of
this Agreement, nor shall the Agent be obligated to perform any
of the obligations or duties of the Grantor thereunder, to make
any payment, to make any inquiry as to the nature or sufficiency
of any payment received by the Grantor or the sufficiency of any
performance by any party under any such contract or agreement or
to take any action to collect or enforce any claim for payment
assigned hereunder.
Section 3. Delivery of Pledged Collateral. All
certificates, notes and other instruments representing or
evidencing the Pledged Shares or the Pledged Debt and all other
instruments now owned or at anytime hereafter acquired by the
Grantor other than any Excluded Notes (collectively, the "Pledged
Collateral") shall be delivered to and held by or on behalf of
the Agent pursuant hereto (except as otherwise provided in the
last sentence of Section 4(f) hereof) and shall be in suitable
form for transfer by delivery, or shall be accompanied by duly
executed instruments of transfer or assignments in blank, all in
form and substance satisfactory to the Agent. Upon the
occurrence and during the continuance of an Event of Default, the
Agent shall have the right, at any time in its discretion and
without notice to the Grantor, to transfer to or to register in
the name of the Agent or any nominee of the Agent any or all of
the Pledged Collateral, subject only to the revocable rights
specified in Section 8 hereof. In addition, upon the occurrence
and during the continuance of an Event of Default, the Agent
shall have the right at any time to exchange certificates or
instruments representing or evidencing Pledged Collateral for
certificates or instruments of smaller or larger denominations.
Section 4. Representations and Warranties. The Grantor
represents and warrants as follows:
(a) As of the date of this Agreement, the locations
listed on Annex II to this Agreement constitute all
locations at which Equipment is located, except for
Equipment temporarily in transit. As of the date of this
Agreement, the chief place of business and chief executive
office of the Grantor are located at the address first
specified above for the Grantor.
(b) The Grantor is the legal and beneficial owner of
the Collateral free and clear of all liens, security inter
ests or other encumbrances, except (other than in respect of
Pledged Collateral described in (e) below) as expressly
permitted by subsection 8.02(b) of the Credit Agreement.
Since the date of its incorporation, Grantor has conducted
business only under its own corporate name (including its
former corporate name, AnnTaylor Holdings, Inc.) and not
under any trade name or other name.
(c) The Grantor has exclusive possession and control
of the Equipment, except for (i) Equipment in the possession
and control of the Grantor's lessees and licensees under
written lease and license agreements entered into in the
ordinary course of business and consistent with past
practice and (ii) Equipment in transit with common or other
carriers.
(d) The Pledged Shares have been duly authorized and
validly issued and are fully paid and non-assessable. The
Pledged Debt of Grantor's Subsidiaries (if any), and, to the
best of the Grantor's knowledge, all other Pledged Debt, has
been duly authorized, issued and delivered, and is the
legal, valid, binding and enforceable obligation of the
issuers thereof.
(e) The Pledged Shares indicated on Annex I-A hereto
constitute all of the shares held by the Grantor of the
respective issuers thereof. The Pledged Shares and the
Pledged Debt constitute all of the Pledged Collateral except
for Pledged Collateral consisting of checks and drafts
received in the ordinary course of business and with respect
to which the Agent has not at any time requested possession
and which are not a material portion of the Collateral under
this Agreement (the "Personal Property Collateral") either
singly or in the aggregate.
(f) This Agreement creates a valid security interest
in the Collateral (other than the Pledged Collateral),
securing the payment of the Guaranteed Obligations, and all
filings and other actions necessary or desirable to perfect
such security interest under the Uniform Commercial Code as
enacted in any relevant jurisdiction have been duly taken or
will be duly taken not later than five Business Days after
the date hereof (all such actions being the filing of
financing statements in the filing offices listed on Annex
III hereto). The pledge and delivery of the Pledged
Collateral pursuant to this Agreement and all other filings
and other actions taken by the Grantor to perfect such
security interest prior to the date hereof, create a valid
and perfected first priority security interest in the
Pledged Collateral, securing the payment of the Guaranteed
Obligations except for Pledged Collateral consisting of
checks and drafts received in the ordinary course of
business with respect to which the Agent has not at any time
requested possession and which are not a material portion of
the Personal Property Collateral either singly or in the
aggregate.
(g) Other than filings under the UCC, no
authorization, approval or other action by, and no notice to
or filing with, any federal, state or local governmental
authority that have not already been taken or made and which
are in full force and effect, is required (i) for the pledge
by the Grantor of the Pledged Collateral or for the grant by
the Grantor of the security interest in the Collateral
granted hereby or for the execution, delivery or performance
of this Agreement by the Grantor, (ii) for the exercise by
the Agent of the voting or other rights provided in this
Agreement with respect to the Pledged Collateral or the
remedies in respect of the Pledged Collateral pursuant to
this Agreement (except as may be required in connection with
the disposition thereof by laws affecting the offering and
sale of securities generally), or (iii) for the exercise by
the Agent of any of its other rights or remedies hereunder.
Section 5. Further Assurances.
(a) The Grantor agrees that from time to time, at the
expense of the Grantor, the Grantor will promptly execute
and deliver all further instruments and documents, and take
all further action, that may be necessary or desirable, or
that the Agent may reasonably request, in order to perfect
and protect any security interest granted or purported to be
granted hereby or to enable the Agent to exercise and
enforce its rights and remedies hereunder with respect to
any Collateral. Without limiting the generality of the
foregoing, at the request of the Agent, the Grantor shall:
(i) if an Event of Default shall have occurred and be
continuing, mark conspicuously each document included in the
Collateral at the request of the Agent made at any time, and
whether or not an Event of Default shall have occurred, mark
each of its records pertaining to the Collateral with a
legend, in form and substance satisfactory to the Agent,
indicating that such document or Collateral is subject to
the security interest granted hereby; and (ii) execute and
file such financing or continuation statements, or
amendments thereto, and such other instruments or notices,
as may be necessary or desirable, or as the Agent may
reasonably request, in order to perfect and preserve the
security interests granted or purported to be granted
hereby.
(b) The Grantor hereby authorizes the Agent to file
one or more financing or continuation statements, and
amendments thereto, relative to all or any part of the
Collateral without the signature of the Grantor where
permitted by law. A carbon, photographic or other
reproduction of this Agreement or any financing statement
covering the Collateral or any part thereof shall be
sufficient as a financing statement where permitted by law.
(c) The Grantor shall furnish to the Agent from time
to time statements and schedules further identifying and
describing the Collateral and such other reports in
connection with the Collateral as the Agent may request, all
in reasonable detail.
Section 6. As to Equipment. The Grantor shall:
(a) Keep the Equipment (other than Equipment sold in
accordance with Section 8.02 of the Credit Agreement) at the
places specified in Section 4(a) hereof and deliver written
notice to the Agent at least 30 days prior to establishing
any other location at which it reasonably expects to
maintain Equipment in which jurisdiction all action required
by Section 5 hereof shall have been taken with respect to
all such Equipment.
(b) Maintain or cause to be maintained in good repair,
working order and condition, excepting ordinary wear and
tear and damage due to casualty, all of the Equipment, and
make or cause to be made all appropriate repairs, renewals
and replacements thereof, to the extent not obsolete and
consistent with past practice of the Grantor, as quickly as
practicable after the occurrence of any loss or damage
thereto which are necessary or desirable to such end. The
Grantor shall promptly furnish to the Agent a statement
respecting any material loss or damage as a result of a
single occurrence to any of the Equipment which has an
aggregate fair market value exceeding $250,000.
(c) Maintain the same or substantially the same
insurance with respect to its properties as Borrower may be
required to maintain under Section 7.05 of the Credit
Agreement with respect to its properties and to comply with
the terms thereof.
Section 7. As to the Pledged Collateral.
(a) So long as no Event of Default shall have occurred
and be continuing:
(i) The Grantor and not the Agent shall be
entitled to exercise any and all voting and other
rights of consent or approval pertaining to the Pledged
Collateral or any part thereof for any purpose not
inconsistent with the terms of this Agreement or the
Credit Agreement; provided, however, that the Grantor
shall not exercise or refrain from exercising any such
right without the consent of the Agent if such action
or inaction would have a material adverse effect on the
value of the Pledged Collateral or the benefits to the
Agent, the Lenders and the Issuing Banks including,
without limitation, the validity, priority or
perfection of the security interest granted hereby or
the remedies of the Agent hereunder.
(ii) The Grantor and not the Agent shall
be entitled to receive and retain any and all dividends
and interest paid in respect of the Pledged Collateral;
provided, however, that any and all
(A) dividends and interest paid or
payable other than in cash in respect of, and
instruments and other property received,
receivable or otherwise distributed in respect of,
or in exchange for, any Pledged Collateral,
(B) dividends and other
distributions paid or payable in cash in respect
of any Pledged Collateral consisting of stock of
any Subsidiary of the Grantor and dividends and
other distributions paid or payable in cash in
respect of any other Pledged Collateral in
connection with a partial or total liquidation or
dissolution or in connection with a reduction of
capital, capital,surplus or paid-in-surplus, and
(C) cash paid, payable or
otherwise distributed in respect of principal of,
or in redemption of, or in exchange for, any
Pledged Collateral,
shall forthwith be delivered to the Agent, in the
case of (A) above, to hold as Pledged Collateral and
shall, if received by the Grantor, be received in trust
for the benefit of the Agent, the Lenders and the
Issuing Banks, be segregated from the other property or
funds of the Grantor, and be forthwith delivered to the
Agent, as Pledged Collateral in the same form as so
received (with any necessary indorsement) and, in the
case of (B) and (C) above, to the extent required under
the terms of the Credit Agreement, shall forthwith be
delivered to the Agent to be applied to the Guaranteed
Obligations in such order as provided in subsection
2.06(b) of the Credit Agreement.
(iii) The Agent shall promptly execute
and deliver (or cause to be executed and delivered) to
the Grantor all such proxies and other instruments as
the Grantor may reasonably request for the purpose of
enabling the Grantor to exercise the voting and other
rights which it is entitled to exercise pursuant to
paragraph (i) above and to receive the dividends or
interest payments which it is authorized to receive and
retain pursuant to paragraph (ii) above.
(b) Upon the occurrence and during the continuance of
an Event of Default and at the Agent's option:
(i) All rights of the Grantor to exercise
the voting and other rights of consent or approval
which it would otherwise be entitled to exercise
pursuant to Section 8(a)(i) hereof and to receive the
dividends and interest payments which it would
otherwise be authorized to receive and retain pursuant
to Section 8(a)(ii) hereof shall cease, and all such
rights shall thereupon become vested in the Agent, who
shall thereupon have the sole right to exercise such
voting and other rights of consent or approval and to
receive and hold as Pledged Collateral such dividends
and interest payments.
(ii) All dividends and interest payments
which are received by the Grantor contrary to the
provisions of paragraph (i) of this Section 8(b) hereof
shall be received in trust for the benefit of the
Agent, the Lenders and the Issuing Banks and shall be
segregated from other funds of the Grantor and shall be
forthwith paid over to the Agent as Pledged Collateral
in the same form as so received (with any necessary
indorsement).
Section 8. Additional Shares. The Grantor agrees that it
will (i) cause each issuer of the Pledged Shares subject to its
control not to issue any stock or other securities in addition to
or in substitution for the Pledged Shares issued by such issuer,
except to the Grantor or as otherwise permitted under the Credit
Agreement, and (ii) pledge hereunder, immediately upon its
acquisition (directly or indirectly) thereof, any and all
additional shares of stock or other securities of each issuer of
the Pledged Shares. The Grantor hereby authorizes the Agent to
modify this Agreement by amending Annex I to include such
additional shares or other securities.
Section 9. Payment of Taxes and Claims. The Grantor shall
pay (i) all taxes, assessments and other charges of any
Governmental Authority imposed upon it or on any of the
Collateral before any penalty or interest accrues thereon, and
(ii) all claims (including, without limitation, claims for labor,
services, materials and supplies) for sums materially adversely
affecting the Collateral, which have become due and payable and
which by law have or may become a lien or other encumbrance upon
any of the Collateral prior to the time when any penalty or fine
shall be incurred with respect thereto; provided that no such
taxes, assessments and charges of any such governmental authority
referred to in clause (i) above or claims referred to in clause
(ii) above need to be paid if being contested in good faith by
appropriate proceedings promptly instituted and diligently
conducted and enforcement thereof is stayed and if a reserve or
other appropriate provision required in conformity with GAAP
shall have been made therefor.
Section 10. The Agent Appointed Attorney-in-Fact. The
Grantor hereby irrevocably appoints the Agent the Grantor's
attorney-in-fact, with full authority in the place and stead of
the Grantor and in the name of the Grantor or otherwise, from
time to time in the Agent's discretion, to take, upon the
occurrence and during the continuance of an Event of Default, any
action and to execute any instrument which the Agent may deem
necessary or advisable to accomplish the purposes of this
Agreement (subject to the rights of the Grantor under Section 7
hereof), including, without limitation:
(a) to obtain and adjust insurance required to be paid
to the Agent pursuant to Section 6(c) hereof,
(i) to ask, demand, collect, sue for,
recover, compromise, receive and give acquittance and
receipts for moneys due and to become due under or in
respect of any of the Collateral,
(ii) to receive, indorse, and collect any
drafts or other instruments, documents and chattel
paper, in connection with clause (i) or (ii) above,
(iii) to sell or assign any Account upon such
terms, for such amount and at such time or times as
Agent deems advisable, to settle, adjust, compromise,
extend or renew any Account or to discharge and release
any Account,
(iv) to file any claims or take any action or
institute any proceedings which the Agent may deem
necessary or desirable for the collection of any of the
Collateral or otherwise to enforce the rights of the
Agent with respect to any of the Collateral, and
(v) to receive, indorse and collect all
instruments made payable to the Grantor representing
any dividend, interest payment or other distribution in
respect of the Pledged Collateral or any part thereof
and to give full discharge for the same.
Nothing set forth in this Section 10 and no exercise by the
Agent of the rights and powers granted in this Section 10 shall
limit or impair the Grantor's rights under Section 7 hereof. The
Grantor hereby ratifies all that said attorneys shall lawfully do
or cause to be done by virtue hereof. All powers, authorizations
and agencies contained in this Agreement are coupled with an
interest and shall be irrevocable until the Obligations are paid
in full and the commitments of the Lenders to extend credit under
the Credit Agreement are terminated.
Section 11. The Agent May Perform. If the Grantor fails to
perform any agreement contained herein, the Agent, upon written
notice to the Grantor if practicable, may itself perform, or
cause performance of, such agreement, and the expenses of the
Agent incurred in connection therewith shall be payable by the
Grantor under Section 15 hereof.
Section 12. The Agent's Duties. The powers conferred on
the Agent hereunder are solely to protect its interest in the
Collateral and shall not impose any duty upon any of them, in the
absence of willful misconduct or gross negligence, to exercise
any such powers. Except for the safe custody of any Collateral
in its possession and the accounting for moneys actually received
by it hereunder, the Agent shall have no duty as to any
Collateral. The Agent shall be deemed to have exercised
reasonable care in the custody and preservation of the Collateral
in its possession if the Collateral is accorded treatment
substantially equal to that which the Agent accords its own
property, it being understood that the Agent shall be under no
obligation to (i) ascertain or take action with respect to calls,
conversions, exchanges, maturities, tenders or other matters
relative to any Pledged Collateral, whether or not the Agent has
or is deemed to have knowledge of such matters, or (ii) take any
necessary steps to preserve rights against prior parties or any
other rights pertaining to any Collateral, but may do so at its
option, and all reasonable expenses incurred in connection
therewith shall be for the sole account of the Grantor and shall
be added to the Guaranteed Obligations.
Section 13. Remedies. If any Event of Default shall have
occurred and be continuing:
(a) The Agent may exercise in respect of the
Collateral, in addition to other rights and remedies
provided for herein or otherwise available to it, all the
rights and remedies of a secured party upon default under
the Uniform Commercial Code as in effect from time to time
in the State of New York (the "Code") (whether or not the
Code applies to the affected Collateral) and also may (i)
require the Grantor to, and the Grantor hereby agrees that
it will at its expense and upon request of the Agent
forthwith, assemble all or any part of the Collateral as
directed by the Agent and make it available to the Agent at
a place to be designated by the Agent which is reasonably
convenient to both parties and (ii) without notice except as
specified below, sell, lease, assign, grant an option or
options to purchase or otherwise dispose of the Collateral
or any part thereof in one or more parcels at public or
private sale, at any exchange, broker's board or at any of
the Agent's offices or elsewhere, for cash, on credit or for
future delivery, and upon such other terms as may be
commercially reasonable. The Agent may be the purchaser of
any or all of the Collateral so sold at any public sale (or,
if the Collateral is of a type customarily sold in a
recognized market or is of a type which is the subject of
widely distributed standard price quotations, at any private
sale) and thereafter hold the same, absolutely, free from
any right or claim of whatsoever kind. The Agent is
authorized, at any such sale, if it deems it advisable so to
do, to restrict the prospective bidders or purchasers of any
of the Pledged Collateral to persons who will represent and
agree that they are purchasing for their own account for
investment, and not with a view to the distribution or sale
of any Pledged Collateral, and to take such other actions as
it may deem appropriate to exempt the offer and sale of the
Collateral from any registration requirements of state or
federal securities laws (including, if it deems it
appropriate, actions to comply with Regulation D of the
Securities and Exchange Commission under the Securities Act
of 1933, as from time to time amended (the "Securities
Act")). To the extent permitted by law, the Grantor hereby
specifically waives all rights of redemption, stay or
appraisal which it has or may have under any rule of law or
statute now existing or hereafter in force. The Grantor
agrees that, to the extent notice of sale shall be required
by law, at least ten days' written notice to the Grantor of
the time and place of any public sale or the time after
which any private sale is to be made shall constitute
reasonable notification. The Agent shall not be obligated
to make any sale of Collateral regardless of notice of sale
having been given. The Agent may adjourn any public or
private sale from time to time by announcement at the time
and place fixed therefor, and such sale may, without further
notice, be made at the time and place to which it was so
adjourned. In case of any sale of all or any part of the
Collateral on credit or for future delivery, the Collateral
so sold may be retained by the Agent until the selling price
is paid by the purchaser thereof, but the Agent shall not
incur any liability in case of the failure of such purchaser
to take up and pay for the Collateral so sold and, in case
of any such failure, such Collateral may again be sold upon
like notice. The Agent instead of exercising the power of
sale herein conferred upon it, may proceed by a suit or
suits at law or in equity to foreclose the security
interests herein granted and sell the Collateral, or any
portion thereof, under a judgment or decree of a court or
courts of competent jurisdiction.
(b) Any cash held by the Agent as Collateral and all
cash proceeds received by the Agent in respect of any sale
of, collection from, or other realization upon all or any
part of the Collateral may, in the discretion of the Agent,
be held by the Agent as Collateral for, and/or then or at
any time thereafter applied against (after payment of any
amounts payable to the Agent pursuant to Section 16 hereof)
in whole or in part by the Agent, for the benefit of the
Agent, the Lenders and the Issuing Banks, all or any part of
the Guaranteed Obligations. Any surplus of such cash or
cash proceeds held by the Agent and remaining after payment
in full of all the Guaranteed Obligations under this
Agreement and the termination of the commitments of the
Lenders to extend credit under the Credit Agreement shall be
promptly paid over to the Grantor or to whomsoever may be
lawfully entitled to receive such surplus.
Section 14. Registration Rights.
(a) If the Agent shall determine to exercise its right
to sell all or any of the Pledged Collateral pursuant to
Section 13 hereof, the Grantor agrees that, upon request of
the Agent, the Grantor will, at its own expense:
(i) execute and deliver, and cause each issuer of the
Pledged Collateral which is a Subsidiary contemplated to be
sold and the directors and officers thereof to execute and
deliver, all such instruments and documents, and do or cause
to be done all such other acts and things, as may be
necessary or, in the opinion of the Agent, advisable to
register such Pledged Collateral under the provisions of the
Securities Act, and to cause the registration statement
relating thereto to become effective and to remain effective
for such period as prospectuses are required by law to be
furnished, and to make all amendments and supplements
thereto and to the related prospectus which, in the opinion
of the Agent, are necessary or advisable, all in conformity
with the requirements of the Securities Act and the rules
and regulations of the Securities and Exchange Commission
applicable thereto;
(ii) use its best efforts to qualify the Pledged
Collateral under the state securities or "Blue Sky" laws and
to obtain all necessary approvals of all Governmental
Authorities for the sale of the Pledged Collateral, as
requested by the Agent;
(iii) cause each such issuer to make available to its
security holders, as soon as practicable, an earnings state
ment which will satisfy the provisions of Section 10 of the
Securities Act; and
(iv) do or cause to be done all such other acts and
things as may be necessary to make such sale of the Pledged
Collateral or any part thereof valid and binding and in
compliance with applicable law.
(b) Determination by the Agent to exercise its right
to sell any or all of the Pledged Collateral pursuant to
Section 13 hereof without making a request of the Grantor
pursuant to Section 14(a) hereof shall not by the sole fact
of such sale be deemed to be commercially unreasonable.
Section 15. Expenses. The Grantor shall upon written
demand pay to the Agent the amount of any and all expenses,
including the fees and disbursements of its counsel and of any
experts and agents, as provided in Section 12.03 of the Credit
Agreement.
Section 16. Amendments, Etc. No amendment or waiver of any
provision of this Agreement nor consent to any departure by the
Grantor herefrom shall in any event be effective unless the same
shall be in writing and signed by the party to be charged
therewith, and they such waiver or consent shall be effective
only in the specific instance and for the specific purpose for
which given.
Section 17. Notices. All notices and other
communications provided for hereunder shall be given in the
manner set forth in the Credit Agreement and to the address first
above written or, as to each party, at such other address as may
be designated by such party in a written notice to the other
party.
Section 18. Continuing Security Interest; Termination. (a)
This Agreement shall create a continuing security interest in the
Collateral and shall (i) remain in full force and effect until
payment in full of the Guaranteed Obligations, the termination of
the commitments of the Lenders to extend credit under the Credit
Agreement and the termination of the Credit Agreement, (ii) be
binding upon the Grantor, its successors and assigns and (iii)
except to the extent that the rights of any transferor or
assignor are limited by Section 12.01 (concerning assignments) of
the Credit Agreement, inure, together with the rights and
remedies of the Agent hereunder, to the benefit of the Agent, the
Lenders and the Issuing Banks, subject to the terms and
conditions of the Credit Agreement. Without limiting the
generality of the foregoing clause (iii), any Lender may assign
or otherwise transfer any interest in any Loan owing to such
Lender to any other Person, and such other Person shall thereupon
become vested with all the benefits in respect thereof granted to
the Agent herein or otherwise, subject, however, to the
provisions of Section 12.01 (concerning assignments) of the
Credit Agreement. Nothing set forth herein or in any other Loan
Document is intended or shall be construed to give the Grantor's
successors and assigns any right, remedy or claim under, to or in
respect of this Agreement, any other Loan Document or any
Collateral. The Grantor's successors and assigns shall include,
without limitation, a receiver, trustee or debtor-in-possession
thereof or therefor.
(b) Upon the payment in full of the Guaranteed Obligations,
the termination of the commitments of the Lenders to extend
credit under the Credit Agreement and the termination of the
Credit Agreement, the security interest granted hereby shall
terminate and all rights to the Collateral shall revert to the
Grantor. Upon any such termination, the Agent shall promptly
return to the Grantor, at the Grantor's expense, such of the
Collateral held by the Agent as shall not have been sold or
otherwise applied pursuant to the terms hereof. The Agent will,
at the Grantor's expense, execute and deliver to the Grantor such
other documents as the Grantor shall reasonably request to
evidence such termination.
Section 19. Applicable Law; Severability. This Agreement
shall be construed in all respects in accordance with, and
governed by, the laws of the State of New York. Whenever
possible, each provision of this Agreement shall be interpreted
in such a manner as to be effective and valid under applicable
law, but if any provision of this Agreement shall be prohibited
by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity,
without invalidating the remainder of such provisions or the
remaining provisions of this Agreement.
Section 20. Consent to Jurisdiction and Service of Process;
Waiver of Jury Trial. ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST
THE GRANTOR WITH RESPECT TO THIS AGREEMENT MAY BE BROUGHT IN ANY
STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE OF
NEW YORK, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE
GRANTOR ACCEPTS, FOR ITSELF IN AND IN CONNECTION WITH ITS
PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE NONEXCLUSIVE
JURISDICTION OF THE AFORESAID COURTS, AND IRREVOCABLY AGREES TO
BE BOUND BY ANY FINAL JUDGMENT RENDERED THEREBY IN CONNECTION
WITH THIS AGREEMENT FROM WHICH NO APPEAL HAS BEEN TAKEN OR IS
AVAILABLE. THE GRANTOR IRREVOCABLY CONSENTS TO THE SERVICE OF
PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR
PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR
CERTIFIED MAIL, POSTAGE PREPAID, TO ITS NOTICE ADDRESS SPECIFIED
ON THE FIRST PAGE HEREOF, SUCH SERVICE TO BECOME EFFECTIVE TEN
(10) DAYS AFTER SUCH MAILING. EACH OF THE GRANTOR AND, BY
ACCEPTANCE HEREOF, THE AGENT AND THE LENDERS, IRREVOCABLY WAIVES
(A) TRIAL BY JURY IN ANY ACTION OR PROCEEDING WITH RESPECT TO
THIS AGREEMENT, AND (B) ANY OBJECTION (INCLUDING WITHOUT
LIMITATION, ANY OBJECTION OF THE LAYING OF VENUE OR BASED ON THE
GROUNDS OF FORUM NON CONVENIENS) WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING WITH
RESPECT TO THIS AGREEMENT IN ANY JURISDICTION SET FORTH ABOVE.
NOTHING HEREIN SHALL AFFECT THE RIGHT TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW.
IN WITNESS WHEREOF, the Grantor has caused this Agreement to
be duly executed and delivered by its officer thereunto duly
authorized as of the day first above written.
ANNTAYLOR STORES CORPORATION
By: /s/ Walter J. Parks
Name: Walter J. Parks
Title: Sr. V.P. - Finance
Agreed and accepted to as of
the date first above written:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Agent
By: /s/ Dietmar Schiel
Name: Dietmar Schiel
Title: Vice President
ANNEX I-A
PLEDGED SHARES
Stock
Class of Certificate No. of
Issuer Stock No. Shares
AnnTaylor, Inc. Common 2 1
ANNEX I-B
PLEDGED DEBT
NONE
ANNEX II
LOCATIONS OF EQUIPMENT
142 West 57th Street
New York, NY 10019
ANNEX III
UCC FILINGS
Jurisdiction Filing Office
New York Secretary of State
New York New York County
