AMENDMENT NO. 4 AND CONSENT TO CREDIT AGREEMENT
This Amendment No. 4 and Consent to Credit Agreement dated as
of January 24, 1994 (this "Amendment") is entered into among
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ANNTAYLOR, INC., a Delaware corporation (the "Borrower"), BANK OF
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AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION and BANK OF
MONTREAL, as Co-Agents (the "Co-Agents"), the financial
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institutions party hereto (the "Lenders") and BANK OF AMERICA
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NATIONAL TRUST AND SAVINGS ASSOCIATION as agent for the Lenders
(the "Agent").
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WHEREAS, the parties hereto are party to that certain Credit
Agreement dated as of June 28, 1993 (as heretofore amended, the
"Credit Agreement"); and
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WHEREAS, the Borrower has requested the Lenders to amend
certain provisions of the Credit Agreement and to consent to the
terms and conditions of a securitization program for Receivables
and the Lenders are willing to agree to such amendments and consent
to such Receivables program.
NOW, THEREFORE, on the terms and subject to the conditions set
forth herein, the parties hereto hereby agree as follows:
ARTICLE I
DEFINED TERMS
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Unless otherwise defined herein, defined terms used herein
shall have the meanings assigned to such terms in the Credit
Agreement.
ARTICLE II
AMENDMENTS TO CREDIT AGREEMENT
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(1) Addition to and Amendment of Definitions.
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(a) The definitions of "Disposition" and "Receivables"
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appearing in Section 1.01 of the Credit Agreement are hereby
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amended to read as follows:
"'Disposition' shall mean (a) the sale, lease,
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conveyance or other disposition of Property to a Person
other than the Borrower or any Restricted Subsidiary of
the Borrower, including any Receivables Transaction (but
excluding the sale or disposition of Cash Equivalents),
and (b) the sale or transfer by the Borrower or ATSC or
any Subsidiary of the Borrower or ATSC of any equity
Securities issued by the Borrower or ATSC."
"'Receivables'" shall mean and include all of the
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Borrower's presently existing and hereafter arising or
acquired right, title and interest in and to (a) any
rights to payment (the "Pool Receivables") from any
Person (an "Obligor") whether constituting an account,
chattel paper, instrument or a general intangible,
arising under revolving credit card accounts established
pursuant to contracts (the "Contracts") between the
Borrower and each Obligor pursuant to which indebtedness
may arise for the purchase of goods, including rights to
payment of any interest or finance charges and other
obligations of such Obligors with respect thereto, (b)
all rights to, but not obligations under, all Contracts,
(c) all rights in the merchandise (including returned
merchandise), if any, relating to the sale which gave
rise to any Pool Receivable, (d) all other security
interests or liens and property subject thereto from time
to time purporting to secure payment of a Pool
Receivable, whether pursuant to the Contract related to
such Pool Receivable or otherwise, (e) all UCC financing
statements covering any collateral securing payment of
any Pool Receivables, (f) all guarantees and other
agreements or arrangements of whatever character from
time to time supporting or securing payment of any Pool
Receivable whether pursuant to the contract related to
such Pool Receivable or otherwise, (g) all monies due or
to become due with respect thereto, (h) all books and
records related to any of the foregoing, and (i) all
proceeds thereof (as defined in the Uniform Commercial
Code) including funds received from or on behalf of the
Obligors in payment of any amounts owed (including
finance charges, interest and all other charges) in
respect of the Pool Receivables or are applied to such
amounts owed by the Obligors (including insurance
payments to be applied to amounts owed in respect of any
Pool Receivable)."
(b) New definitions of "Ongoing Receivables Sales" and
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"Receivables Transaction" are hereby added to Section 1.01 of
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the Credit Agreement reading as follows:
"'Ongoing Receivables Sales' shall mean sales of
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Receivables which do not result in an increase in the
amount of outstanding loans, investments or purchases by
any lender, investor or purchaser (other than any
Subsidiary of the Borrower) in any Receivables
Transaction over the highest such amount previously
outstanding at any time under any Receivables
Transaction."; and
"'Receivables Transaction' shall mean a transaction
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which involves (a) sales of Receivables in connection
with a public or private transfer of installment
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Receivables or credit card Receivables (including in
connection with a securitization program) which transfer
is recorded as a sale according GAAP or (b) loans made by
a lender to the Borrower or a Subsidiary of the Borrower
which loans are secured by Receivables, provided the
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terms and conditions of such transaction are satisfactory
to Lenders whose Pro Rata Shares in the aggregate are
greater than 50% (whose approval shall not be
unreasonably withheld or delayed)."
(2) Amendment of Mandatory Prepayment Provisions.
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(a) Clause (i) of Section 2.06(b) of the Credit
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Agreement is hereby amended by adding the words "or as a
result of a Receivables Transaction" after the word
"securities" appearing on line five thereof.
(b) A new clause (v) is hereby added to paragraph (b) of
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Section 2.06 of the Credit Agreement reading as follows and
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present clauses (v) and (vi) thereof are hereby renumbered as
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clauses (vi) and (vii):
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"(v) Simultaneously with the receipt by the
Borrower of the Net Cash Proceeds of any Receivables
Transaction (other than proceeds received from Ongoing
Receivables Sales), the Borrower shall prepay the Term
Loans to the extent outstanding in an amount equal to
such Net Cash Proceeds; provided, however, that the
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Borrower may apply a maximum amount of $15,000,000 of Net
Cash Proceeds received in connection with the first
Receivables Transaction to occur after the Effective Date
to prepay Revolving Loans to the extent outstanding."
(c) The first sentence of renumbered clause (vii) of
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paragraph (b) of Section 2.06 of the Credit Agreement is
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hereby amended to read as follows:
"Prepayments under this Section 2.06(b)(i), (ii),
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(iii) and (v) made after the Term Availability
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Termination Date shall be applied to the repayment of the
Term Loans pro rata across all remaining unpaid
installments of the Term Loans."
(3) Amendment to Use of Proceeds Restrictions.
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Section 2.12 of the Credit Agreement is hereby amended to read
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as follows:
"2.12 Use of Proceeds of the Loans. The proceeds of the
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Term Loans may be used only (a) to repay Indebtedness owed by
the Borrower under the Existing Credit Agreement; (b) to
redeem, repurchase and pay interest and premiums on the Bonds;
and (c) to pay fees and expenses associated with the
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redemption or repurchase of the Bonds and the refinancing of
the Existing Credit Agreement. The proceeds of the Revolving
Loans may be used (i) for general corporate purposes; (ii) to
repay Indebtedness owed by the Borrower under the Existing
Credit Agreement; (iii) to purchase or make Restricted
Payments to ATSC to repay or redeem outstanding Exchange
Notes; and (iv) to prepay, redeem or purchase outstanding New
Subordinated Notes (and interest, premiums, fees and expenses
in connection therewith) in a maximum aggregate principal
amount of $15,000,000, provided, however, that only up to a
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maximum aggregate principal amount of $10,000,000 of New
Subordinated Notes may be prepaid, redeemed or purchased prior
to the consummation of the first Receivables Transaction to
occur after the Effective Date."
(4) Amendment to Corporate Powers, Etc.
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The second sentence of Section 7.02 of the Credit Agreement is
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hereby amended to read as follows:
"The Borrower will, and will cause each of its
Subsidiaries to, transact business in its own name (and in any
other name disclosed to the Agent in writing) and will invoice
all accounts in its own name."
(5) Amendment to Permitted Indebtedness.
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Section 8.01(e) of the Credit Agreement is hereby amended to
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read as follows:
"(e) Indebtedness in connection with any Receivables
Transaction;"
(6) Amendment to Sales of Assets Provisions.
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Section 8.02(a)(iii) of the Credit Agreement is hereby amended
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to read as follows:
"(iii) Receivables Transactions;"
(7) Amendment to Permitted Liens Provisions.
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Section 8.02(b)(vii) of the Credit Agreement is hereby amended
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to read as follows:
"(vii) Liens in respect of Receivables sold pursuant to
a Receivables Transaction;"
(8) Amendment to Permitted Investments.
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Section 8.03(d) of the Credit Agreement is hereby amended to
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read as follows:
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"(d) Investments in Subsidiaries if such Subsidiaries
have been organized in connection with a Receivables
Transaction; and investments in other Subsidiaries which are
Restricted Subsidiaries in an amount not to exceed $1,000,000
in any Fiscal Year;"
(9) Amendment to Accommodation Obligations.
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Section 8.04(iii) of the Credit Agreement is hereby amended to
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read as follows:
"(iii) obligations in respect of any Receivables
Transaction; and"
(10) Amendment to Conduct of Business Provisions.
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Clause (d) of Section 8.06 of the Credit Agreement is hereby
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amended to read as follows:
"any Receivables Transaction."
ARTICLE III
CONSENT TO RECEIVABLES TRANSACTION
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The Banks hereby consent to the terms and conditions of the
proposed sale of Receivables as outlined in the letter attached
hereto as Exhibit A.
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ARTICLE IV
CONFIRMATION OF AUTHORITY TO RELEASE COLLATERAL
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Each Lender hereby confirms, in accordance with Section
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11.11(d) of the Credit Agreement, the authority of the Agent to
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release Collateral sold pursuant to any Receivables Transaction.
ARTICLE V
BORROWER SECURITY AGREEMENT
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(1) The second sentence of Section 4(b) of the Borrower
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Security Agreement is hereby amended by including the following at
the end thereof:
"4) AnnTaylor Factory Stores."
(2) Annex I-A of the Borrower Security Agreement is hereby
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amended by including the following entry as the last entry thereof:
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Stock
Class of Certificate No. of
Issuer Stock No. Shares
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AnnTaylor Funding, common 1 100
Inc.
(3) Annex I-B of the Borrower Security Agreement is hereby
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amended to read as follows:
"Subordinated Promissory Note dated as of January __,
1994 by AnnTaylor Funding, Inc. to AnnTaylor, Inc."
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
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The Company hereby represents and warrants that after giving
effect to this Amendment, the representations and warranties
contained in Section 5.02 of the Credit Agreement (except for
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representations and warranties relating to a particular point in
time) are true and complete in all material respects as if made on
and as of such date and no Potential Event of Default or Event of
Default has occurred and is continuing.
ARTICLE VII
MISCELLANEOUS
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(1) Effectiveness.
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This Amendment will become effective when the Agent has
received counterparts hereof signed by the Borrower and the
Requisite Lenders.
(2) Reference and Effect on the Loan Documents.
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(a) Upon the effectiveness of this Amendment as provided
in Section (1) of this Article VII, each reference in the
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Credit Agreement to "this Agreement", "hereunder", "hereof",
"herein", or words of like import shall mean and be a
reference to the Credit Agreement as amended hereby.
(b) Except as specifically amended or waived above, the
Credit Agreement and each other Loan Document shall remain in
full force and effect and are hereby ratified and confirmed in
all respects.
(c) The execution, delivery, and effectiveness of this
Amendment shall not, except as expressly provided herein,
operate as a waiver of any right, power, or remedy of any
Lender or the Agent under the Credit Agreement or any of the
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other Loan Documents, nor constitute a waiver of any provision
of any of the Loan Documents.
(3) Execution in Counterparts.
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This Amendment may be executed in any number of counterparts
and by different parties hereto in separate counterparts, each of
which when executed and delivered shall be deemed to be an original
and all of which taken together shall constitute but one and the
same instrument.
(4) Governing Law.
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THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, this Amendment has been duly executed as
of the date set forth above.
ANNTAYLOR, INC.,
as Borrower
By: _______________________
Title: ____________________
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent
By: _______________________
Title: ____________________
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Co-Agent
By: _______________________
Title: ____________________
BANK OF MONTREAL,
as Co-Agent
By: _______________________
Title: ____________________
ARAB BANKING CORPORATION
By: _______________________
Title: ____________________
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By: _______________________
Title: ____________________
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BANK OF MONTREAL
By: _______________________
Title: ____________________
THE FIRST NATIONAL BANK
OF BOSTON
By: _______________________
Title: ____________________
FLEET BANK, N.A.
By: _______________________
Title: ____________________
THE FUJI BANK, LIMITED
By: _______________________
Title: ____________________
GIROCREDIT BANK, NEW YORK BRANCH
By: _______________________
Title: ____________________
THE INDUSTRIAL BANK OF
JAPAN, LIMITED
By: _______________________
Title: ____________________
THE LONG-TERM CREDIT BANK
OF JAPAN, LIMITED, NEW YORK
BRANCH
By: _______________________
Title: ____________________
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MIDLANTIC NATIONAL BANK
By: _______________________
Title: ____________________
NATWEST USA CREDIT CORP.
By: _______________________
Title: ____________________
PNC BANK, NA
By: _______________________
Title: ____________________
SHAWMUT BANK, N.A.
By: _______________________
Title: ____________________
UNITED STATES NATIONAL
BANK OF OREGON
By: _______________________
Title: ____________________
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