AMENDMENT XX. 0
XXXXXXXXX XX. 0 dated as of April 11, 1997 between
ANNTAYLOR GLOBAL SOURCING, INC., a Delaware corporation (the
"Company"), and THE HONGKONG AND SHANGHAI BANKING CORPORATION
LIMITED, a foreign banking corporation acting through its New
York Branch (the "Bank").
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The Company and the Bank are parties to an Amended and
Restated Credit Agreement dated as of September 20, 1996 (as
heretofore amended, modified and supplemented and in effect on
the date hereof, the "Credit Agreement") providing, subject to
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the terms and conditions thereof, for extensions of credit (by
issuing letters of credit and making loans) to be made by the
Bank to the Company in an aggregate face or principal amount not
exceeding $40,000,000.
The Company and the Bank wish to amend the Credit
Agreement (i) to decrease the Loan Commitment to an aggregate
principal amount not exceeding $5,000,000, (ii) to amend the
calculation of the Borrowing Base, and (iii) to permit the
consignment to the Borrower of certain goods and merchandise
relating to Letters of Credit issued by the Bank under the Credit
Agreement. Accordingly the parties hereto hereby agree as
follows:
Section 1. Definitions. Terms defined in the Credit
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Agreement are used herein as defined therein.
Section 2. Amendments. Subject to the satisfaction
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of the conditions precedent specified in Section 4 below, but
effective as of the date hereof, the Credit Agreement shall be
amended as follows:
A. References in the Credit Agreement to "this
Agreement" shall be deemed to be references to the Credit
Agreement as amended hereby.
B. The definition of "Borrowing Base" in Section 1.01
of the Credit Agreement is amended in its entirety to read as
follows:
"Borrowing Base" shall mean, as at any day of
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determination thereof, the sum of (i) 80% of the
aggregate amount of Eligible Receivables at said
date plus (ii) 50% of the aggregate amount of
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Eligible Inventory at said date, which Eligible
Inventory shall in no event exceed $4,000,000 in
the aggregate prior to such fractional reduction,
plus (iii) 50% of the aggregate face amount of all
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undrawn Letters of Credit at said date plus (iv)
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the undrawn face amount of the AT Credit at said
date minus (v) an amount equal to two times the
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average monthly commissions or processing fees (to
the extent such are included in the value of
Inventory) paid to bailees, warehousemen, terminal
operators, Processors (as defined in the
definition of "Eligible Inventory" set forth in
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this Section 1.01) or other third parties with
whom the Company has lodged Inventory during the
period of two fiscal quarters most recently ended
on or before such date.
C. The definition of "Loan Commitment" in Section
1.01 of the Credit Agreement is amended in its entirety to read
as follows:
"Loan Commitment" shall mean the obligation
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of the Bank to make Loans up to an aggregate
principal amount for all Loans at any one time
outstanding up to $5,000,000.
D. Section 2.02(e) of the Credit Agreement is deleted
in its entirety.
Section 3. Representations and Warranties. The Company
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represents and warrants to the Bank that the representations and
warranties set forth in Section 7 of the Credit Agreement are true
and complete on the date hereof as if made on and as of the date hereof
and as if each reference in said Section 7 to "this Agreement" included
reference to this Amendment No. 1.
Section 4. Conditions Precedent. As provided in Section 2
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above, the amendments to the Credit Agreement set forth in said Section 2
shall become effective, as of the date hereof, upon the satisfaction
of the following conditions precedent:
A. Execution by all Parties. This Amendment No. 1 shall have
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been executed and delivered by each of the parties hereto.
B. Corporate Action. The Bank shall have received certified
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copies of (i) the charter and by-laws (or equivalent documentation) of
the Company and (ii) all corporate action (or its equivalent) taken by
the Company approving this Amendment No. 1, the Credit Agreement as amended
hereby and the borrowings by the Company under the Credit Agreement as
amended hereby (including, without limitation, a certificate setting forth
the resolutions of the Board of Directors of the Company adopted in
respect of the transactions contemplated hereby and thereby).
C. Incumbency. The Bank shall have received a
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certificate of the Company in respect of each of the officers (i)
who is authorized to sign this Amendment No. 1 on its behalf and
(ii) who will, until replaced by another officer or officers duly
authorized for that purpose, act as its representative for the
purposes of signing documents and giving notices and other
communications in connection with this Amendment No. 1 and the
Credit Agreement as amended hereby, and the transactions
contemplated hereby and thereby (and the Bank may conclusively
rely on such certificate until it receives notice in writing from
the Company to the contrary).
D. Certain Conditions. The Bank shall have received
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a certificate of the president or a vice president of the Company
to the effect that (i) the Company has complied and is then in
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compliance with all of the terms, conditions and covenants of the
Credit Agreement, (ii) no Default or Event of Default has
occurred thereunder, (iii) the representations and warranties of
the Company contained in the Credit Agreement are true in all
respects as if such representations and warranties had been made
on the date hereof, and (iv) there shall have been no material
adverse change in the financial condition, business, operations
or property of the Company since December 31, 1996.
E. Opinion of Counsel to the Company. The Bank shall
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have received an opinion of counsel to the Company, substantially
in the form of Exhibit A hereto.
F. Other Documents. The Bank shall have received
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such other documents as the Bank or its counsel may reasonably
request.
Section 5. Miscellaneous. THIS AMENDMENT NO. 1 SHALL BE
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GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK. Except as herein provided, the Credit Agreement shall remain
unchanged and in full force and effect. This Amendment No. 1 may
be executed in any number of counterparts, all of which taken together
shall constitute one and the same amendatory instrument and any of the
parties hereto may execute this Amendment No. 1 by signing any such
counterpart.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 1 to be duly executed as of the day and year first
above written.
ANNTAYLOR GLOBAL SOURCING, INC.
By /s/Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title:Vice President
THE HONGKONG AND SHANGHAI BANKING
CORPORATION LIMITED,
NEW YORK BRANCH
By /s/AD Xxxxxxx
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Name: AD Xxxxxxx
Title:SVP
