EXHIBIT 10.28.2
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ATSC GUARANTY
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THIS GUARANTY (as such agreement may be amended, supplemented or
otherwise modified from time to time, this "Guaranty") dated as of June
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30, 1998 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
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TRUST AND SAVINGS ASSOCIATION, with an office located at 1455 Market
Street, San Francisco, California 94103, in its capacity as 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:
ANNTAYLOR, INC., a Subsidiary of the Guarantor (the "Borrower"),
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the Administrative Agent, BancAmerica Robertson Stephens, as Arranger,
certain financial institutions currently and in the future parties to
the Credit Agreement (such financial institutions being collectively,
the "Lenders"), Citicorp USA and First Union Capital Markets, in their
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respective capacities as Syndication Agents (in such capacities, the
"Syndication Agents") and Bank of America National Trust and Savings
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Association, Citibank, N.A. and First Union National Bank, in their
respective capacities as Issuing Banks (in such capacities, the
"Issuing Banks") have entered into a certain Credit Agreement dated as
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of June 30, 1998 (as such agreement may be amended, supplemented or
otherwise modified from time to time, the "Credit Agreement";
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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. It is a condition precedent to the
effectiveness of the Credit Agreement that this Guaranty shall have
been executed and delivered.
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 Administrative Agent, by acceptance hereof,
hereby agrees, as follows:
1. Guaranty.
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(a) The Guarantor hereby unconditionally and irrevocably
guarantees to the Administrative Agent, for its benefit and the benefit
of the Lenders, the Issuing Banks, the Arranger and the Syndication Agents,
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,
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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"). For purposes of this Guaranty, any
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Affiliate of any Lender which is a party to an Interest Rate Contract or
Foreign Currency Exchange Agreement with the Borrower or any of its
Restricted Subsidiaries shall be deemed to be a "Lender".
(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
Administrative Agent, any of the Lenders, any of the Issuing Banks,
the Arranger or the Syndication Agents, 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 Administrative 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.
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The Guarantor hereby represents and warrants to the Administrative
Agent that each representation and warranty made by Borrower in Article V of
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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
Administrative 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.
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3. Waivers; Other Agreements.
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(a) The Administrative 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 Administrative 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 Administrative 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 Administrative
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 Administrative 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
Section 2.05(b) of the Credit Agreement, whether such Guaranteed
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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 Administrative Agent as the Administrative 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 Administrative Agent's sole
discretion, any payment received by the Administrative Agent in
respect of any Guaranteed Obligations, and payment to the
Administrative 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 Administrative 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 Administrative 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 Administrative 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
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Section 1111(b)(2) of the Bankruptcy Code;
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(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;
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(vi) the disallowance, under Section 502 of the Bankruptcy
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Code, of all or any portion of the Administrative Agent's claim(s) for
repayment of the Guaranteed Obligations;
(vii) any use of cash collateral under Section 363 of the
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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
Administrative 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 Administrative 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 Administrative Agent that is
authorized by this Guaranty;
(xiii) any election by the Administrative Agent under
Section 9-501(4) of the Uniform Commercial Code as enacted in any
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relevant jurisdiction (the "Code") as to any security for the
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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 Administrative Agent;
(ii) presentment, demand for payment or performance and
protest and notice of protest with respect to the Guaranteed
Obligations;
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(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 Administrative Agent to secure payment of the
Guaranteed Obligations or any guaranty therefor;
(iv) any right to require the Administrative 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
Administrative Agent in connection with the Guaranteed Obligations,
or (c) pursue any other remedy in the Administrative 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 Administrative 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 Administrative 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 Administrative Agent shall not have
any duty to advise the Guarantor of information known to the Administrative
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
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thereof, under common law or otherwise) of the Administrative Agent, the
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Lenders, the Issuing Banks, the Arranger or the Syndication Agents 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
Administrative Agent in the exact form received by the Guarantor
(duly indorsed by the Guarantor to the Administrative Agent, if required),
to be applied against the Obligations, whether matured or unmatured, in
such order as the Administrative 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
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the Administrative 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 Administrative Agent,
the Borrower shall pay to the Administrative Agent all or any part of
the Subordinated Debt and any amount so paid to the Administrative
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 Administrative Agent and shall be
paid over to the Administrative 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 Administrative 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
Administrative Agent, as the Guarantor's attorney-in-fact, is hereby
authorized to do so in the Guarantor's name or, in the Administrative
Agent's discretion, to assign such claim to and cause proof of claim
to be filed in the name of the Administrative 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
Administrative Agent the full amount payable on the claim in the
proceeding, and, to the full extent necessary for that purpose,
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the Guarantor hereby assigns to the Administrative 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 Administrative
Agent will pay the excess amount to the party entitled thereto.
In addition, the Guarantor hereby appoints Administrative 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.
(h) Notwithstanding anything to the contrary in this Guaranty or any
other Loan Document, the Guarantor shall not (a) conduct, transact or
otherwise engage in, or commit to conduct, transact or otherwise engage
in, any business or operations other than those incidental to its
ownership of the equity Securities of the Borrower, (b) incur, create,
assume or suffer to exist any Indebtedness or other liabilities or
financial obligations, except (i) nonconsensual obligations imposed
by operation of law, (ii) pursuant to the Loan Documents to which
it is a party, (iii) obligations with respect to its Securities and
(iv) obligations with respect to the Preferred Securities, or (c) own,
lease, manage or otherwise operate any properties or assets (including
cash (other than cash received in connection with Restricted Payments
made by the Borrower in accordance with the Credit Agreement pending
application in the manner contemplated by the Credit Agreement) and
cash equivalents) other than (i) the ownership of shares of equity
Securities of the Borrower, (ii) the ownership of one share of
capital stock of AnnTaylor Sourcing Far East Limited, (iii) ownership
of the intercompany note described in subsection 8.07(i) in accordance
with the terms thereof and (iv) ownership of the common securities of
AnnTaylor Finance Trust; provided that, notwithstanding the foregoing,
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the Guarantor may from time to time conduct activities directly related
to the business of the Borrower and its Subsidiaries that the Borrower
and/or its Subsidiaries would be permitted to conduct at such time under
the applicable provisions of the Credit Agreement so long as, prior to
commencing any such activity, the Required Lenders shall, by written
consent (which may only be requested hereunder when no Default or Event of
Default has occurred and is continuing), have reasonably determined that
such activity or its consequences could not reasonably be expected to have
an adverse effect on the interests of the Lenders or the Borrower and its
Subsidiaries.
4. Default, Remedies.
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(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 the
Borrower as provided in any other instrument or document evidencing all
or any part of the Guaranteed Obligations, the Administrative 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
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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
Administrative 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 Administrative 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
Administrative Agent or any of its affiliates.
(c) The Guarantor hereby authorizes and empowers the Administrative
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
Administrative 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 Administrative
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 Administrative Agent of, and no
omission of the Administrative Agent to exercise, any power or
authority recognized herein and no impairment or suspension of any
right or remedy of the Administrative 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 Administrative Agent, the Lenders,
the Issuing Banks, the Arranger or the Syndication Agents.
(d) The Guarantor consents and agrees that the Administrative
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 Administrative
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
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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.
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(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 Administrative Agent, the
Lenders, the Issuing Banks, the Arranger and the Syndication Agents;
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 Administrative Agent's acceptance
hereof and reliance hereon.
(c) No delay on the part of the Administrative Agent in the
exercise of any right or remedy shall operate as a waiver thereof,
and no single or partial exercise by the Administrative 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 Administrative Agent, except
as expressly set forth in a writing duly signed and delivered by
the Administrative Agent or on the Administrative Agent's behalf
by an authorized officer or agent of the Administrative Agent.
The Administrative 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
Administrative Agent shall not waive, affect or diminish any
right of the Administrative 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
Administrative Agent, its agents, officers or employees,
unless such waiver is contained in an instrument in writing
signed by an officer or agent of the Administrative 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 Administrative 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 Administrative Agent permitted
hereunder shall in any way affect or impair the Administrative
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 Administrative 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.
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(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
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Jury Trial. ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST EACH PARTY
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HERETO 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, EACH PARTY HERETO
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. 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 THE GUARANTOR AND, BY ACCEPTANCE HEREOF, THE ADMINISTRATIVE
AGENT, THE ARRANGER, THE SYNDICATION AGENTS 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 Administrative 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 Administrative 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
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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.
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IN WITNESS WHEREOF, undersigned have made this Guaranty as of the
date first above written.
ANNTAYLOR STORES CORPORATION
By:/s/ Walter J. Parks
--------------------------_
Name: Walter J. Parks
Title: Senior Vice President-
Chief Financial Officer
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
-----------------------------
Name: Dietmar Schiel
Title: Vice President