EXHIBIT 10.28.1
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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 June 30, 1998, by
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ANNTAYLOR, INC., a Delaware corporation, with 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
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TRUST AND SAVINGS ASSOCIATION ("Bank of America"), with an office
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located at 1455 Market Street, San Francisco, California 94103,
in its capacity as the Administrative Agent for the Lenders under
the Credit Agreement (as defined below) (in such capacity, the
"Administrative Agent").
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R E C I T A L S:
The Borrower, certain financial institutions currently and
in the future to be parties to the Credit Agreement (such
financial institutions being collectively, the "Lenders"), the
Administrative Agent, BancAmerica Robertson Stephens, as Arranger
(in such capacity, the "Arranger"), Citicorp USA and First Union
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Capital Markets, in their respective capacities as Syndication
Agents (in such capacities, the "Syndication Agents"), and Bank
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of America National Trust and Savings Association, Citibank, N.A.
and First Union National Bank, in their respective capacities as
Issuing Banks (in such capacities, the "Issuing Banks"), have
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entered into a certain Credit Agreement, dated as of June 30,
1998 (as such agreement may be amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"), which
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provides for the Lenders to make Loans to the Borrower and for
the Issuing Banks to issue Letters of Credit for the account of
the Borrower. It is a condition precedent to the making of Loans
and the issuance of Letters of Credit under the Credit Agreement
that the Borrower shall have executed and delivered this
Trademark Security Agreement.
NOW, THEREFORE, in consideration of the above premises and
in order to induce the Lenders to make Loans and each Issuing
Bank to issue Letters of Credit under the Credit Agreement, the
Borrower hereby agrees with the Administrative Agent for its
benefit, for the benefit of the Lenders, the Issuing Banks, the
Arranger and the Syndication Agents, as follows:
1. Defined Terms.
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(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
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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.
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(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.
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2. Security Interest in Trademarks.
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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 Borrower
hereby assigns and pledges to the Administrative Agent, and
hereby grants to the Administrative Agent for its benefit and the
benefit of the Lenders, the Issuing Banks, the Arranger and the
Syndication Agents, a security interest in all of the Borrower'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"):
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(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
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individually and/or collectively referred to as the
"Trademarks");
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(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"); and
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(c) the goodwill of the Borrower's business connected with
and symbolized by the Trademarks;
3. Restrictions on Future Agreements.
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The Borrower agrees that until all the Obligations shall
have been satisfied in full, no Letters of Credit are outstanding
and the Credit Agreement shall have been terminated, the Borrower
will not, without the Administrative Agent's prior written
consent, abandon any Trademark, except as would not have a
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Material Adverse Effect, 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 Administrative 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
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the Borrower from engaging in transactions permitted under
Section 8.02(a)(iv) or (vi) of the Credit Agreement.
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4. New Trademarks.
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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 material 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, the Letters of Credit shall
have expired or 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
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thereto, and the Borrower shall give to the Administrative Agent
prompt written notice thereof of all new trademark registrations
and applications. The Borrower hereby authorizes the
Administrative 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 Trademarks or the Licenses, under paragraph 2 above or
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under this paragraph 4.
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5. Additional Representations and Warranties.
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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.
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(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, any Letter
of Credit remains outstanding and the Credit Agreement has not
terminated, it will not execute, and there will not be on file in
any public office, any effective 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
Administrative 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 Administrative Agent of the existence of material
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.
(g) The Borrower will not sell, assign or otherwise
transfer any of its right, title or interest in any of the
Collateral except as permitted by the Credit Agreement and
provided that to the extent it sells, assigns or otherwise
transfers any of its right, title or interest in any of the
Collateral to any Subsidiary Guarantor, such Subsidiary Guarantor
shall have (i) entered into a trademark security agreement
substantially similar in form and substance to this Agreement and
(ii) taken all other actions necessary or desirable to perfect
such security interest, including, without limitation, any
filings with the United States Patent and Trademark Office, any
filings and registrations with the United States Copyright Office
and any filings under the Uniform Commercial Code in effect in
each relevant jurisdiction.
6. Royalties; Term.
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(a) The Borrower hereby agrees that any rights granted
hereunder to the Administrative Agent for the benefit of the
Administrative Agent, the Lenders, the Issuing Banks, the
Arranger and the Syndication Agents with respect to all the
Collateral as described above shall be worldwide and without any
liability for royalties or other related charges from the
Administrative Agent to the Borrower.
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(b) 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 payment in full of the
Obligations, the termination of the commitments of the Lenders to
extend credit under the Credit Agreement, the termination or
expiration of all Letters of Credit and the termination of the
Credit Agreement.
7. The Administrative Agent's Right to Inspect.
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Subject to Section 7.06 of the Credit Agreement, the
Administrative 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 Administrative 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, substantially consistent with
or better than the quality of said merchandise as of the date
hereof.
8. Termination of Security Interest.
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This Trademark Security Agreement is made for collateral
purposes only. Upon payment in full of the Obligations, the
termination of the commitments of the Lenders to extend credit
under the Credit Agreement, the termination or expiration of all
outstanding Letters of Credit and termination of the Credit
Agreement, the Administrative Agent shall, at the Borrower's sole
cost and expense, execute and deliver to the Borrower all
termination statements, releases or other instruments as may be
necessary or proper to re-vest in the Borrower (without recourse
to or warranty by the Administrative Agent) full title to the
Collateral granted hereby, subject to any disposition thereof
which may have been made by the Administrative Agent pursuant
hereto or pursuant to the Credit Agreement.
9. Duties of the Borrower.
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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 Administrative Agent except as would not have or
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be reasonably expected to have a Material Adverse Effect. If the
Borrower fails to comply with any of the foregoing duties, the
Administrative 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 Administrative Agent in full for
all expenses, including the fees and disbursements of counsel
incurred by the Administrative 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
Administrative 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 Administrative Agent's Right to Sue.
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From and after the occurrence and during continuance of an
Event of Default, the Administrative 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
Administrative Agent shall commence any such suit, the Borrower
shall, at the request of the Administrative Agent, do any and all
lawful acts and execute any and all proper documents required by
the Administrative Agent in aid of such enforcement. The
Borrower shall, upon demand, promptly reimburse the
Administrative Agent for all costs and expenses incurred by
Administrative Agent pursuant to the terms of the Credit
Agreement.
11. Waivers.
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No course of dealing among the Borrower, the Administrative
Agent, the Lenders, the Issuing Banks, the Arranger, the
Syndication Agents or any of them, and no failure to exercise,
nor any delay in exercising, on the part of the Administrative
Agent, the Lenders, the Issuing Banks, the Arranger, the
Syndication Agents, 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. Cumulative Remedies; Power of Attorney; Effect On Other
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Agreements.
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All of the Administrative 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
Administrative Agent of written notice to the Borrower of the
Administrative Agent's intention to enforce its right and claims
against the Borrower, the Borrower hereby authorizes the
Administrative Agent to make, constitute and appoint any officer
or agent of the Administrative Agent as the Administrative Agent
may select, in its sole discretion, as the Borrower's true and
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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
Administrative Agent in the use of the Collateral, or (ii) take
any other actions with respect to the Collateral as the
Administrative Agent deems in the best interest of the
Administrative 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, no Letters of Credit are outstanding 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
Administrative Agent and the Lender under the Loan Documents but
rather is intended to facilitate the exercise of such rights and
remedies. The Administrative Agent, the Lenders, the Issuing
Banks, the Arranger and the Syndication Agents 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.
13. Binding Effect; Benefits.
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This Trademark Security Agreement shall be binding upon the
Borrower and its successors and assigns, and shall inure to the
benefit of the Administrative Agent, the Lenders, the Issuing
Banks, the Arranger and the Syndication Agents. The Borrower's
successors and assigns shall include, without limitation, a
receiver, trustee or debtor-in-possession of or for the Borrower.
14. Expenses.
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The Borrower shall upon written demand pay to the
Administrative 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.
15. Amendments, Etc.
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No amendment or waiver of any provision of this Trademark
Security Agreement nor consent to any departure by the Borrower
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.
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16. Notices.
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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.
17. Applicable Law; Severability.
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This Trademark Security 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
Trademark Security Agreement shall be interpreted in such a
manner as to be effective and valid under applicable law, but if
any provision of this Trademark Security 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 Trademark Security Agreement.
18. Consent to Jurisdiction and Service of Process; Waiver
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of Jury Trial.
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ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST EACH PARTY HERETO
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, EACH
PARTY HERETO 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. EACH PARTY HERETO 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
ADMINISTRATIVE AGENT, THE ARRANGER, THE SYNDICATION 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
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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.
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19. Waiver of Notice, Hearing and Bond.
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THE BORROWER WAIVES ALL RIGHTS TO NOTICE AND HEARING OF ANY
KIND PRIOR TO THE EXERCISE BY THE ADMINISTRATIVE 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
ADMINISTRATIVE 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 ADMINISTRATIVE 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.
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THE BORROWER REPRESENTS TO THE ADMINISTRATIVE AGENT THAT IT
HAS DISCUSSED THIS TRADEMARK SECURITY AGREEMENT WITH ITS
ATTORNEYS.
21. Governing Provisions.
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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.
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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.
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IN WITNESS WHEREOF, the Borrower has caused this Trademark
Security 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
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Name: Walter J. Parks
Title: Senior Vice President-
Chief Financial Officer
Attest:
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Agreed and accepted to as of
the date first above written:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Administrative Agent
By: /s/ Dietmar Schiel
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Name: Dietmar Schiel
Title: Vice President
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STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
The foregoing Trademark Security Agreement was
executed and acknowledged before me this 30th day of June
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1998, by Walter J. Parks personally known to me to be
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the SVP-CFO of AnnTaylor, Inc., a Delaware
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corporation, on behalf of such corporation.
(SEAL)
/s/Adrienne M. Klein
_________________________
Notary Public
New York County, New York
My Commission Expires:
September 8, 1999