EXHIBIT 10.15.7
SECOND AMENDMENT dated as of December 28, 1999
(this "Second Amendment"), to the Credit
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Agreement dated as of June 30, 1998 (as
amended, the "Credit Agreement"), among
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AnnTaylor, Inc., a Delaware corporation (the
"Borrower"), Bank of America National Trust and
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Savings Association, now known as Bank of
America, N.A. ("Bank of America"), Citibank,
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N.A. ("Citibank"), First Union National Bank
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and each of the other lenders party to the
Credit Agreement, NationsBanc Montgomery
Securities LLC, now known as BancAmerica
Securities LLC, as Arranger, Bank of America,
as Administrative Agent (the "Administrative
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Agent"), Citicorp USA and First Union Capital
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Markets, as Syndication Agents, and Bank of
America, Citibank and First Union National
Bank, as Issuing Banks.
The Borrower intends to enter into Accommodation Obligations for the
purpose of guaranteeing the performance by AnnTaylor Retail, Inc., a direct,
wholly-owned Restricted Subsidiary, formerly known as AnnTaylor Loft, Inc.
("AnnTaylor Retail") of its obligations associated with its retail operations
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and entered into in the ordinary course of business (the "Retail
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Accommodation Obligations").
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Further, pursuant to the First Amendment to the Credit Agreement, dated
as of September 7, 1999, the Credit Agreement was amended to permit the
repurchase by AnnTaylor Stores Corporation ("ATSC") of Common Stock of ATSC
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and the prepayment of Subordinated Debt, collectively in an amount not to
exceed $40,000,000 (the "Repurchase"). ATSC has consummated the Repurchase
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and in connection therewith, the Borrower wishes to be permitted to declare
and pay dividends of up to $40,000,000 (the "Repurchase Dividend") to ATSC in
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order to pay the consideration with respect to the Repurchase.
The Borrower has requested that the Lenders and the Administrative
Agent amend the Credit Agreement (i) to permit the Borrower to enter into the
Retail Accommodation Obligations and (ii) to permit the Borrower to pay the
Repurchase Dividend.
Capitalized terms used and not otherwise defined herein shall have the
meanings assigned to such terms in the Credit Agreement (the Credit
Agreement, as amended by, and together with, this Second Amendment, and as
hereinafter amended, modified, extended or restated from time to time, being
called the "Amended Agreement").
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Accordingly, the parties hereto hereby agree as follows:
SECTION 1.01. Amendment to Section 8.04. Section 8.04 is hereby
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amended by deleting the word "and" at the end of subsection (e), by adding
the word "and" immediately following the semicolon (";") at the end of
subsection (f) and by adding the following new subsection (g):
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"(g) guarantees by the Borrower of obligations of
AnnTaylor Retail, Inc., a Restricted Subsidiary of the Borrower,
not relating to Indebtedness (other than Indebtedness incurred in
relation to clause (d) of the definition of Indebtedness herein),
to third parties with respect to retail operations of AnnTaylor
Retail, Inc., entered into on an arm's length basis and in the
ordinary course of business."
SECTION 1.02. Amendments to Section 8.05. Section 8.05 is hereby
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amended by deleting clause (j) in its entirety and replacing it with the
following:
"(j) dividends paid and declared by the Borrower to ATSC to fund (i)
any redemption, retirement, sinking fund or similar payment, purchase or
other acquisition for value, direct of indirect, of any shares of Common
Stock of ATSC now or hereafter outstanding or (ii) 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 any Subordinated Debt; provided that (A) the aggregate
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consideration paid pursuant to this clause (j) shall not exceed $40,000,000
and (B) immediately prior to and after giving effect thereto, no Event of
Default shall have occurred and be continuing."
SECTION 1.03. Acknowledgment of the Repurchase. The Administrative
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Agent and the Requisite Lenders hereby acknowledge the consummation of the
Repurchase effected by ATSC prior to the date hereof.
SECTION 1.04. Representations and Warranties. The Borrower hereby
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represents and warrants to each Lender, each Issuing Bank, the Syndication
Agents and the Administrative Agent, as follows; provided that the Borrower
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makes no representation as to the qualification to do business and good
standing of AnnTaylor Retail as a foreign corporation in any jurisdiction
other than that the failure to be so qualified and in good standing has not
had a Material Adverse Effect:
(a) The representations and warranties set forth in
Article V of the Amended Agreement, and in each other Loan
Document, are true and correct in all material respects on and as
of the date hereof and on and as of the Second Amendment
Effective Date (as hereinafter defined) with the same effect as
if made on and as of the date hereof or the Second Amendment
Effective Date, as the case may be, except to the extent such
representations and warranties expressly relate solely to an
earlier date.
(b) The Borrower is in compliance with all the terms and
conditions of the Amended Agreement and the other Loan Documents
on its part to be observed or performed and no Event of Default
has occurred and is continuing.
(c) The execution, delivery and performance by the
Borrower of this Second Amendment have been duly authorized by
the Borrower.
(d) This Second Amendment constitutes the legal, valid
and binding obligation of the Borrower, enforceable against it in
accordance with its terms.
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The execution, delivery and performance by the Borrower of
this Second Amendment 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 the Borrower'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 ATSC or
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
Administrative Agent or the Issuing Banks arising pursuant to the
Loan Documents or Liens permitted pursuant to Section 8.02(b) of
the Credit Agreement), or (v) require any approval of
stockholders, unless such approval has been obtained.
SECTION 1.05. Effectiveness. This Second Amendment shall become
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effective only upon satisfaction of the following conditions precedent (the
first date upon which each such condition has been satisfied being herein
called the "Second Amendment Effective Date"):
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(a) The Administrative Agent shall have received duly
executed counterparts of this Second Amendment which, when taken
together, bear the authorized signatures of the Borrower and the
Requisite Lenders.
(b) The Administrative Agent shall be satisfied that the
representations and warranties set forth in Section 1.04 of this
Second Amendment are true and correct on and as of the Second
Amendment Effective Date.
(c) There shall not be any action pending or any
judgment, order or decree in effect that, in the reasonable
judgment of the Administrative Agent or the Lenders, is likely to
restrain, prevent or impose materially adverse conditions upon
performance by the Borrower of its obligations under the Amended
Agreement.
(d) The Administrative Agent shall have received such
other documents, legal opinions, instruments and certificates
relating to this Second Amendment as they shall reasonably
request and such other documents, legal opinions, instruments and
certificates shall be satisfactory in form and substance to the
Administrative Agent and the Lenders. All corporate and other
proceedings taken or to be taken in connection with this Second
Amendment and all documents incidental thereto, whether or not
referred to herein, shall be satisfactory in form and substance
to the Administrative Agent and the Lenders.
(e) The Borrower shall have paid all fees and expenses
referred to in Section 1.07 of this Second Amendment for which
they have been billed.
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SECTION 1.06. APPLICABLE LAW. THIS SECOND AMENDMENT SHALL BE GOVERNED
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BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK.
SECTION 1.07. Expenses. The Borrower shall pay all reasonable
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out-of-pocket expenses incurred by the Administrative Agent in connection
with the preparation, negotiations execution, delivery and enforcement of
this Second Amendment, including, but not limited to, the reasonable fees and
disbursements of counsel to the Administrative Agent.
SECTION 1.08. Counterparts. This Second Amendment may be executed in
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any number of counterparts, each of which shall constitute an original but
all of which when taken together shall constitute but one agreement.
Delivery of an executed counterpart of a signature page to this Second
Amendment by telecopier shall be effective as delivery of a manually executed
counterpart of this Second Amendment.
SECTION 1.09. Loan Documents. Except as expressly set forth herein,
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the amendments provided herein shall not by implication or otherwise limit,
constitute a waiver of, or otherwise affect the rights and remedies of the
Lenders, the Administrative Agent, the Issuing Banks or the Arranger under
the Amended Agreement or any other Loan Document, nor shall they constitute a
waiver of any Event of Default, nor shall they alter, modify, amend or in any
way affect any of the terms, conditions, obligations, covenants or agreements
contained in the Amended Agreement or any other Loan Document. Each of the
amendments provided herein shall apply and be effective only with respect to
the provisions of the Amended Agreement specifically referred to by such
amendments. Except as expressly amended herein, the Amended Agreement and
the other Loan Documents shall continue in full force and effect in
accordance with the provisions thereof. As used in the Amended Agreement,
the terms "Agreement", "herein", "hereinafter", "hereunder", "hereto" and
words of similar import shall mean, from and after the date hereof, the
Amended Agreement.
[signature pages to follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be duly executed by duly authorized officers, all as of the date
first above written.
ANNTAYLOR, INC., as Borrower
By /s/James Smith
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Name: James Smith
Title: Vice President and Controller
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BANK OF AMERICA, N.A.,
as Administrative Agent, Issuing Bank and as a
Lender
By /s/Timothy H. Spanos
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Name: Timothy H. Spanos
Title: Managing Director
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AMSOUTH BANK,
as a Lender
By /s/Kathleen F. Kerlinger
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Name: Kathleen F. Kerlinger
Title: Attorney-In-Fact
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FIRST UNION NATIONAL BANK, as Issuing Bank
and as a Lender
By /s/Irene Rosen Marks
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Name: Irene Rosen Marks
Title: Vice President
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HELLER FINANCIAL, INC.,
as a Lender
By /s/Dennis Graham
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Name: Dennis Graham
Title: Vice President
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NATIONAL CITY COMMERCIAL FINANCE, INC.,
as a Lender
By /s/ Elizabeth M. Lynch
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Name: Elizabeth M. Lynch
Title: Senior Vice President
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TRANSAMERICA BUSINESS CREDIT CORPORATION,
as a Lender
By /s/ Perry Vavoules
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Name: Perry Vavoules
Title: Senior Vice President
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JACKSON NATIONAL LIFE INSURANCE COMPANY,
as a Lender
By: PPM Finance Inc., as its Attorney-In-Fact
By /s/James Curgone
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Name: James Curgone
Title: Vice President
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CITICORP USA, as a Lender
By /s/ Miles D. McManus
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Name: Miles D. McManus
Title: Vice President
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CITIBANK, N.A., as an Issuing Bank
By /s/Miles D. McManus
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Name: Miles D. McManus
Title: Vice President
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FINOVA CAPITAL CORPORATION, successor by merger
to FREMONT FINANCIAL CORPORATION,
as a Lender
By /s/ Jeffrey Stanek
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Name: Jeffrey Stanek
Title: Vice President, Team Leader
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LASALLE NATIONAL BANK,
as a Lender
By /s/Robert Corsentino
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Name: Robert Corsentino
Title:
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SUMMIT BANK,
as a Lender
By /s/Yuri Piltser
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Name: Yuri Piltser
Title: V.P.