EXHIBIT 10.1
AMENDMENT NO. 3 TO CREDIT AGREEMENT
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THIS AMENDMENT NO. 3 TO CREDIT AGREEMENT (this "Amendment No. 3") is
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made and entered into effective as of the 13th day of August, 2003, by and
among ANNTAYLOR, INC., a Delaware corporation ("Borrower"), THE UNDERSIGNED
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GUARANTORS, and BANK OF AMERICA, N.A., a national banking association in its
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capacity as administrative agent (in such capacity, the "Administrative
Agent"), for each of the lenders (the "Lenders") now or hereafter party to the
Credit Agreement referenced below.
W I T N E S S E T H:
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WHEREAS, the Borrower, the Lenders, the issuing banks named therein, the
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syndication agents named therein, and the Administrative Agent have entered
into an Amended and Restated Credit Agreement dated as of April 30, 2001, as
amended by that certain Amendment No. 1 to Credit Agreement dated December
20, 2001, and Amendment No. 2 to Credit Agreement dated August 29, 2002, by
and among the Borrower, the Administrative Agent and the Guarantors party
thereto (as hereby amended and as from time to time further amended,
supplemented, modified, replaced, or restated, the "Credit Agreement"),
pursuant to which the Lenders agreed to make certain revolving credit and
letter of credit facilities available to the Borrower; and
WHEREAS, each of the undersigned Subsidiaries of the Borrower is a
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Guarantor and has materially benefited and will materially benefit from the
Loans made and to be made and the Letters of Credit issued and to be issued
under the Credit Agreement; and
WHEREAS, the Borrower has requested that the Credit Agreement be amended
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as set forth herein and the Requisite Lenders are willing to amend the Credit
Agreement as set forth herein; and
WHEREAS, the undersigned Subsidiaries consent to the amendments to the
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Credit Agreement as set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants and the
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fulfillment of the conditions set forth herein, and intending to be legally
bound, the parties hereto do hereby agree as follows:
1. Definitions. The term "Credit Agreement" as used herein and in
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the Loan Documents shall mean the Credit Agreement as hereby amended and
modified. Any capitalized terms used herein without definition shall have
the meaning set forth in the Credit Agreement.
2. Amendment of Section 8.03 of the Credit Agreement. Subject to the
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terms and conditions set forth herein, subsection (j) of Section 8.03 of the
Credit Agreement is hereby amended to replace the figure $2,500,000 in the
second line thereof with the figure $20,000,000.
3. Representations and Warranties. In order to induce the
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Administrative Agent and the Lenders to enter into this Amendment No. 3, the
Borrower represents and warrants to the Administrative Agent and the Lenders
as follows:
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(a) Except as previously disclosed in writing to the Lenders or as
consented to and waived herein, the representations and warranties made
by the Borrower in Article V of the Credit Agreement are true and
correct on and as of the date hereof, except that the financial
statements referred to in Section 5.01(f) (solely for the purpose of the
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representation and warranty contained in such Section 5.01(f) but not
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for the purpose of any cross reference to such Section 5.01(f) or to the
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financial statements described therein contained in any other provision
of Section 5.01 or elsewhere in Article V) shall be those most recently
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furnished to each Lender pursuant to Section 6.01;
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(b) There has been no material adverse change in the condition,
financial or otherwise, of the Borrower and its Restricted Subsidiaries,
taken as a whole, or of ATSC and its Subsidiaries, taken as a whole,
since the date of the most recent financial reports of the Borrower
received by the Administrative Agent and each Lender under Section 6.01
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of the Credit Agreement;
(c) The business and properties of the Borrower and its Restricted
Subsidiaries, taken as a whole, and of ATSC and its Subsidiaries, taken
as a whole, are not, and since the most recent financial report of the
Borrower, ATSC and its Restricted Subsidiaries received by the
Administrative Agent and the Lenders under Section 6.01 of the Credit
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Agreement, have not been, materially adversely affected in any
substantial way as the result of any fire, explosion, earthquake,
accident, strike, lockout, combination of workers, flood, embargo, riot,
activities of armed forces, war or acts of God or the public enemy, or
cancellation or loss of any major contracts; and
(d) No event has occurred and is continuing which constitutes, and
no condition exists which upon the consummation of the transaction
contemplated hereby would constitute, a Default or an Event of Default
under the Credit Agreement as amended hereby which has not been waived
and consented to hereby.
4. Entire Agreement. This Amendment No. 3 sets forth the entire
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understanding and agreement of the parties hereto in relation to the subject
matter hereof and supersedes any prior negotiations and agreements among the
parties relative to such subject matter. No promise, condition,
representation or warranty, express or implied, not herein set forth shall
bind any party hereto, and not one of them has relied on any such promise,
condition, representation or warranty. Each of the parties hereto
acknowledges that, except as in this Amendment No. 3 otherwise expressly
stated, no representations, warranties or commitments, express or implied,
have been made by any party to the other. None of the terms or conditions of
this Amendment No. 3 may be changed, modified, waived or canceled orally or
otherwise, except as provided in the Credit Agreement.
5. Full Force and Effect of Agreement. Except as hereby specifically
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amended, modified, waived or supplemented, the Credit Agreement and all other
Loan Documents are hereby confirmed and ratified in all respects and shall
remain in full force and effect according to their respective terms.
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6. Conditions Precedent. The effectiveness of this Amendment No. 3
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shall be subject to the conditions precedent that the Administrative Agent
shall have received ten (10) fully executed originals of this Amendment No.
3, executed by the Required Lenders.
7. Counterparts. This Amendment No. 3 may be executed in any number
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of counterparts, each of which shall be deemed an original as against any
party whose signature appears thereon, and all of which shall together
constitute one and the same instrument.
8. Governing Law. This Amendment No. 3 shall in all respects be
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governed by the laws and judicial decisions of the State of New York.
9. Enforceability. Should any one or more of the provisions of this
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Amendment No. 3 be determined to be illegal or unenforceable as to one or
more of the parties hereto, all other provisions nevertheless shall remain
effective and binding on the parties hereto.
10. Successors and Assigns. This Amendment No. 3 shall be binding upon
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and inure to the benefit of each of the Borrower, the Lenders and the
Administrative Agent and their respective successors, assigns and legal
representatives; provided, however, that the Borrower, without the prior
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consent of all the Lenders, may not assign any rights, powers, duties or
obligations hereunder.
11. Consent of Guarantors. Each of the Guarantors by its execution and
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delivery hereof (i) consents and agrees to the amendments to the Loan
Documents set forth herein and (ii) reaffirms its obligations set forth in
the ATSC Guaranty or the Subsidiary Guaranty, as applicable, and each other
Loan Document to which it is a party.
[Signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 3
to be duly executed by their duly authorized officers, all as of the day and
year first above written.
ANNTAYLOR, INC., AS BORROWER
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By:
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Name:
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Title:
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ANNTAYLOR DISTRIBUTION SERVICES, INC.
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ANNTAYLOR RETAIL, INC.
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ANNCO, INC., EACH IN ITS CAPACITY AS A SUBSIDIARY
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GUARANTOR
By:
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Name:
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Title:
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ANNTAYLOR STORES CORPORATION, IN ITS
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CAPACITY AS GUARANTOR
By:
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Name:
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Title:
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BANK OF AMERICA, N.A., AS ADMINISTRATIVE AGENT
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By:
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Name:
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Title:
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6
BANK OF AMERICA, N.A., AS A LENDER
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By:
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Name:
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Title:
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7
JPMORGAN CHASE BANK
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(FORMERLY KNOWN AS THE CHASE MANHATTAN BANK)
By:
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Name:
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Title:
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8
WACHOVIA BANK, NATIONAL ASSOCIATION
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(FORMERLY KNOWN AS FIRST UNION NATIONAL BANK )
By:
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Name:
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Title:
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9
FLEET NATIONAL BANK
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By:
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Name:
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Title:
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10
THE CIT GROUP/BUSINESS CREDIT, INC.
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By:
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Name:
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Title:
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11
U.S. BANK NATIONAL ASSOCIATION (FORMERLY
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KNOWN AS FIRSTSTAR BANK, N.A.)
By:
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Name:
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Title:
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12
TRANSAMERICA BUSINESS CAPITAL
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CORPORATION
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By:
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Name:
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Title:
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13
BANK LEUMI USA
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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14
FIFTH THIRD BANK
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By:
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Name:
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Title:
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