098888\0048\00067\959LG3XD.GUA
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098888\0048\00067\959LG3XD.GUA
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EXECUTION COPY
ATSC GUARANTY
THIS AMENDED AND RESTATED GUARANTY (as such agreement may be
amended, supplemented or otherwise modified from time to time,
this "Guaranty") dated as of September 29, 1995 is made by
ANNTAYLOR STORES CORPORATION, a Delaware corporation, with its
principal place of business at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 (the "Guarantor"), in favor of BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION, with an office at 0000
Xxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, in its capacity
as Agent under the "Credit Agreement" (as defined below) (the
"Agent").
R E C I T A L S:
ANNTAYLOR, INC., a Subsidiary of the Guarantor, (the
"Borrower"), the Agent, BA Securities, Inc., as Arranger, Bank of
America National Trust and Savings Association and Fleet Bank,
National Association, as Co-Agents, and certain financial
institutions currently and in the future parties to the Credit
Agreement (such financial institutions being collectively, the
"Lenders") have entered into a certain Amended and Restated
Credit Agreement dated as of September 29, 1995 (as such
agreement may be amended, supplemented or otherwise modified from
time to time, the "Credit Agreement"; 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. The Credit Agreement amends and restates the existing
credit agreement, dated as of July 29, 1994, as amended, among
the parties thereto, which existing credit agreement is
guaranteed by the Guaranty, dated as of July 29, 1994 (the
"Existing Guaranty"). It is a condition precedent to the
effectiveness of the Credit Agreement that the Existing Guaranty
be amended and restated as set forth herein.
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 Agent, by acceptance hereof, hereby
agrees, that the Existing Guaranty is hereby amended and restated
in its entirety as follows:
1. Guaranty.
(a) The Guarantor hereby unconditionally and irrevocably
guarantees to the Agent, for its benefit and the benefit of the
Lenders and the Issuing Banks, 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, 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").
(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 Agent, any of the
Lenders or the Issuing Banks 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 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.
The Guarantor hereby represents and warrants to the Agent
that each representation and warranty made by Borrower in Article
V of 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
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.
3. Waivers; Other Agreements.
(a) The 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 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 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 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 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 subsection 2.06(b) of the Credit Agreement,
whether such Guaranteed 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 Agent as the 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 Agent's sole
discretion, any payment received by the Agent in respect of
any Guaranteed Obligations, and payment to the 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 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 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 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 Section 1111(b)(2) of the Bankruptcy Code;
(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;
(vi) the disallowance, under Section 502 of the
Bankruptcy Code, of all or any portion of the Agent's
claim(s) for repayment of the Guaranteed Obligations;
(vii) any use of cash collateral under Section 363 of
the 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 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 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 Agent that is authorized
by this Guaranty;
(xiii) any election by the Agent under Section
9-501(4) of the Uniform Commercial Code as enacted in any
relevant jurisdiction (the "Code") as to any security for
the 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 Agent;
(ii) presentment, demand for payment or performance and
protest and notice of protest with respect to the Guaranteed
Obligations;
(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 Agent to secure payment of the
Guaranteed Obligations or any guaranty therefor;
(iv) any right to require the 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 Agent in connection with the Guaranteed Obligations,
or (c) pursue any other remedy in the 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 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 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 Agent shall not have any duty to advise the
Guarantor of information known to the 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 thereof, under common law
or otherwise) of the Agent, the Lenders or the Issuing Banks
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 Agent in the exact form received
by the Guarantor (duly indorsed by the Guarantor to the Agent, if
required), to be applied against the Obligations, whether matured
or unmatured, in such order as the 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 the 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 Agent, the Borrower shall
pay to the Agent all or any part of the Subordinated Debt and any
amount so paid to the 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
Agent and shall be paid over to the 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 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 Agent, as the
Guarantor's attorney-in-fact, is hereby authorized to do so in
the Guarantor's name or, in the Agent's discretion, to assign
such claim to and cause proof of claim to be filed in the name of
the 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 Agent the full
amount payable on the claim in the proceeding, and, to the full
extent necessary for that purpose, the Guarantor hereby assigns
to the 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 Agent will pay the excess amount to the party
entitled thereto. In addition, the Guarantor hereby appoints
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.
4. Default, Remedies.
(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 Borrower
as provided in any other instrument or document evidencing all or
any part of the Guaranteed Obligations, the 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 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 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 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 Agent or any of its
affiliates.
(c) The Guarantor hereby authorizes and empowers the 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 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 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 Agent of, and no omission of the
Agent to exercise, any power or authority recognized herein and
no impairment or suspension of any right or remedy of the 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 Agent, the Lenders or the Issuing Banks.
(d) The Guarantor consents and agrees that the 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 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 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.
(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 Agent, the Lenders and the
Issuing Banks; 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
Agent's acceptance hereof and reliance hereon.
(c) No delay on the part of the Agent in the exercise of
any right or remedy shall operate as a waiver thereof, and no
single or partial exercise by the 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 Agent, except as expressly set forth in a
writing duly signed and delivered by the Agent or on the Agent's
behalf by an authorized officer or agent of the Agent. The
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 Agent shall not waive,
affect or diminish any right of the 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 Agent, its agents, officers or employees, unless such
waiver is contained in an instrument in writing signed by an
officer or agent of the 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 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 Agent permitted hereunder shall in
any way affect or impair the 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 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.
(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 Jury Trial. ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST THE
GUARANTOR 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, THE
GUARANTOR 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.
THE GUARANTOR 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 AGENT 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 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 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
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.
IN WITNESS WHEREOF, undersigned have made this Guaranty as
of the date first above written.
ANNTAYLOR STORES CORPORATION
By: /s/ Xxxxxx X. Xxxxx
Title: Sr. V.P. - Finance
Agreed and accepted to as of
the date first above written:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Agent
By: /s/ Xxxxxxx Xxxxxx
Title: Vice President
