EXHIBIT 10.19.6
EXECUTION COPY
FIRST AMENDMENT dated as of September 7, 1999 (this "First
-----
Amendment"), to the Credit Agreement dated as of June 30,
---------
1998 (the "Credit Agreement"), among AnnTaylor, Inc., a
------------------
Delaware corporation (the "Borrower"), Bank of America
--------
National Trust and Savings Association, now known as Bank
of America, N.A. ("Bank of America"), Citibank, N.A.
-----------------
("Citibank"), First Union National Bank 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 Agent"), Citicorp
--------------------
USA and First Union Capital Markets, as Syndication Agents,
and Bank of America, Citibank and First Union National
Bank, as Issuing Banks.
The Borrower has requested the Administrative Agent and the Lenders to
make certain changes to the Credit Agreement. The parties hereto have agreed,
subject to the terms and conditions hereof, to amend the Credit Agreement as
provided herein.
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 First Amendment, and as hereinafter
amended, modified, extended or restated from time to time, being called the
"Amended Agreement").
-----------------
Accordingly, the parties hereto hereby agree as follows:
SECTION 1.01. Amendment to Section 1.01. (a) Section 1.01 of the Credit
-------------------- -----
Agreement is hereby amended by deleting the definition of "Fixed Charge Coverage
Ratio" in its entirety and by substituting the following in lieu thereof:
""Fixed Charge Coverage Ratio" shall mean, for any period, the
------------------------------
quotient obtained by dividing (a) EBITDAR minus Capital Expenditures,
-----
plus an amount equal to 40% (Forty percent) of the unencumbered cash
as reflected on the financial statements delivered pursuant to
Sections 6.01(a) and (b) by (b) the sum of (i) Interest Expense plus
----
(ii) Rental Expense."
(b) Section 1.01 of the Credit Agreement is hereby amended by
deleting the first sentence of the definition of "Pricing Ratio" in its
entirety and by substituting the following in lieu thereof:
""Pricing Ratio" shall mean, during any fiscal quarter, the
--------------
quotient obtained by dividing (a) EBITR by (b) the sum of (i)
Interest Expense plus (ii) Rental Expense for the period of four
----
consecutive fiscal quarters ended on the last day of the immediately
preceding fiscal quarter."
- --------------------------------------------------------------------------------
2
(b) Section 1.01 of the Credit Agreement is hereby amended by adding
the following definition in the appropriate alphabetical location:
""EBITDAR" shall mean, for any period, the sum of the amounts
-------
for such period, of (a) Net Income, plus (b) to the extent Net Income
----
is reduced thereby (i) all charges for amortization of intangibles
and depreciation, (ii) Interest Expense, (iii) income tax expense and
(iv) extraordinary losses plus (c) Rental Expense, minus (d)
---- -----
extraordinary gains (net of taxes)."
SECTION 1.02. Amendments to Section 8.05. Section 8.05 is hereby amended
--------------------------
by deleting the word "and" at the end of clause (h), deleting the period at the
end of clause (i) and replacing it with the phrase "; and" and adding the
following clause to the end thereof:
"(j) (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 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. Amendment to Section 8.15. Section 8.15 of the Credit
----------------------------
Agreement is hereby deleted in its entirety and the following is hereby
substituted in lieu thereof:
"8.15. [Intentionally Omitted]"
SECTION 1.04. Representations and Warranties. The Borrower hereby
--------------------------------
represents and warrants to each Lender, each Issuing Bank, the Syndication
Agents and the Administrative Agent, as follows:
(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
First Amendment Effective Date (as hereinafter defined) with the same
effect as if made on and as of the date hereof or the First 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 or is
continuing.
(c) The execution, delivery and performance by the Borrower of this
First Amendment have been duly authorized by the Borrower.
- --------------------------------------------------------------------------------
3
(d) This First Amendment constitutes the legal, valid and binding
obligation of the Borrower, enforceable against it in accordance with its
terms.
(e) The execution, delivery and performance by the Borrower of this
First 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 First Amendment shall become effective
-------------
only upon satisfaction of the following conditions precedent (the first date
upon which each such condition has been satisfied being herein called the "First
-----
Amendment Effective Date"):
- -------------------------
(a) the Administrative Agent shall have received duly executed
counterparts of this First 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 First
Amendment are true and correct on and as of the First Amendment Effective
Date.
(c) There shall not be any action pending or any judgment, order or
decree in effect which, in the 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
First 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 First
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 First Amendment.
- --------------------------------------------------------------------------------
4
SECTION 1.06. APPLICABLE LAW. THIS FIRST AMENDMENT SHALL BE GOVERNED
---------------
BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK.
SECTION 1.07. Expenses. The Borrower shall pay (i) all reasonable
--------
out-of-pocket expenses incurred by the Administrative Agent and the Lenders in
connection with the preparation, negotiations execution, delivery and
enforcement of this First Amendment, including, but not limited to, the
reasonable fees and disbursements of counsel to the Administrative Agent and
(ii) an amendment fee in the aggregate amount of 8 basis points on the aggregate
Commitments of the Lenders as of the First Amendment Effective Date, payable to
each of the Lenders executing this First Amendment, pro rata according to their
respective commitments (the "Amendment Fee").
-------------
SECTION 1.08. Counterparts. This First Amendment may be executed in 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 First Amendment by telecopier
shall be effective as delivery of a manually executed counterpart of this First
Amendment.
SECTION 1.09. Loan Documents. Except as expressly set forth herein, 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]
- --------------------------------------------------------------------------------
5
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to
be duly executed by duly authorized officers, all as of the date first above
written.
ANNTAYLOR, INC., as Borrower
by /s/ Barry Erdos
-----------------------------------
Name: Barry Erdos
Title: E.V.P. C.F.O. & Treasurer
- --------------------------------------------------------------------------------
6
BANK OF AMERICA, N.A.,
as Issuing Bank and as a Lender
by /s/ Bill Manley
------------------------------------
Name: Bill Manley
Title: Managing Director
- --------------------------------------------------------------------------------
7
AMSOUTH BANK,
as a Lender
by /s/ Kathleen F. Kerlinger
-------------------------------------
Name: Kathleen F. Kerlinger
Title: Attorney-in-fact
- --------------------------------------------------------------------------------
8
FIRST UNION NATIONAL BANK, as Issuing Bank
and as a Lender
by
-----------------------------------
Name:
Title:
- --------------------------------------------------------------------------------
9
HELLER FINANCIAL, INC.,
as a Lender
by /s/ Dennis Graham
----------------------------------
Name: Dennis Graham
Title: Assistant Vice President
- --------------------------------------------------------------------------------
10
NATIONAL CITY COMMERCIAL FINANCE, INC.,
as a Lender
by /s/Elizabeth M. Lynch
-----------------------------------
Name: Elizabeth M. Lynch
Title: Senior Vice President
- --------------------------------------------------------------------------------
11
TRANSAMERICA BUSINESS CREDIT CORPORATION,
as a Lender
by /s/ Perry Vavoules
------------------------------------
Name: Perry Vavoules
Title: Senior Vice President
- --------------------------------------------------------------------------------
12
JACKSON NATIONAL LIFE INSURANCE COMPANY,
as a Lender
by
------------------------------------
Name:
Title:
- --------------------------------------------------------------------------------
13
CITICORP USA, as a Lender
by /s/ John W. Pokowsky
---------------------------------
Name: John W. Pokowsky
Title: Managing Director
Structured Finance Division
- --------------------------------------------------------------------------------
14
CITIBANK, N.A., as an Issuing Bank
by /s/ John W. Pokowsky
---------------------------------
Name: John W. Pokowsky
Title: Managing Director
Structured Finance Division
- --------------------------------------------------------------------------------
15
FREMONT FINANCIAL CORPORATION,
as a Lender
by /s/ Ruth Yang
--------------------------------
Name: Ruth Yang
Title: Credit Analyst
- --------------------------------------------------------------------------------
16
LASALLE NATIONAL BANK,
as a Lender
by /s/ Robert Corsentino
--------------------------------
Name: Robert Corsentino
Title: Senior Vice President
- --------------------------------------------------------------------------------
17
SUMMIT BANK,
as a Lender
by /s/ Yuri Piltser
------------------------------
Name: Yuri Piltser
Title: Vice President