AMENDMENT XX. 0
XXXXXXXXX XX. 0 dated as of July 29, 1997 between
ANNTAYLOR GLOBAL SOURCING, INC., a Delaware corporation (the
"Company"), and THE HONGKONG AND SHANGHAI BANKING CORPORATION
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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 increase the Letter of
Credit Commitment to an aggregate face amount not exceeding
$50,000,000, and to amend the Credit Agreement in certain other
respects, and accordingly, the parties hereto hereby agree as
follows:
Section 1. Definitions. Terms defined in the
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Credit Agreement are used herein as defined therein.
Section 2. Amendments. Subject to the
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satisfaction 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 "Letter of Credit Commitment" in
Section 1.01 of the Credit Agreement is amended in its entirety
to read as follows:
"Letter of Credit Commitment" shall mean the
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obligation of the Bank to issue Letters of Credit
up to an aggregate face amount for all Letters of
Credit at any one time outstanding up to
$50,000,000.
C. The definition of "Termination Date" in Section
1.01 of the Credit Agreement is amended in its entirety to read
as follows:
"Termination Date" shall mean January 30,
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1998, unless otherwise extended to a later date by
the Bank pursuant to Section 2.06 hereof.
D. The definition of "Total Facility" in Section 1.01
of the Credit Agreement is amended in its entirety to read as
follows:
"Total Facility" shall mean, as to all
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Credits hereunder, the aggregate face or principal
amount of $50,000,000.
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E. Section 2.04(a)(ii) of the Credit Agreement is
amended to read in its entirety as follows:
The Company shall pay to the Bank a
commitment fee at a rate per annum equal to 0.125%
of the daily average Available Facility for the
period from and including the date hereof to and
including the date the Commitments expire or are
terminated.
F. Section 8.01(c) of the Credit Agreement is amended
to read in its entirety as follows:
As soon as available and in any event within
ten (10) days after the end of each month of each
fiscal year of the Company, an updated aged
accounts receivable schedule and inventory
schedule, which schedules shall be in form and
substance satisfactory to the Bank and certified
by the executive vice president, the senior vice
president - finance or the vice-president/controller
of the Company.
G. Section 8.01(d) of the Credit Agreement is amended
to read in its entirety as follows:
As soon as available and in any event within
ten (10) days after the end of each month of each
fiscal year of the Company, an updated Borrowing
Base Certificate, which certificate shall be in
form and substance satisfactory to the Bank and
certified by the executive vice president, the
senior vice president - finance or the vice
president/controller of the Company.
H. Section 8.10 of the Credit Agreement is deleted in
its entirety.
I. Section 8.11 of the Credit Agreement is deleted in
its entirety.
J. Section 8.12 of the Credit Agreement is deleted in
its entirety.
K. Section 8.14 of the Credit Agreement is amended to
read in its entirety as follows:
Without the prior written consent of the
Bank, the Company shall not engage to any
substantial extent in any line or lines of
business activity other than the business of
purchase and wholesale distribution of apparel,
shoes and accessories with respect to AT, ATSC and
their respective Affiliates.
L. Section 8.21 of the Credit Agreement is amended to
read in its entirety as follows:
Operating Account. Other than in connection
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with its trade payable disbursements and payroll
operations, the Company shall maintain all of its
principal bank accounts with the Bank.
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Section 3. Representations and Warranties.
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The Company 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. 2.
Section 4. Conditions Precedent. As provided
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in Section 2 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. 2
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shall have been executed and delivered by each of the parties
hereto.
B. Initial Commitment Fee. Evidence that the Company
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shall have paid to the Bank the commitment fee set forth in that
certain Commitment Letter dated July 17, 1997 relating to this
Amendment No. 2.
C. AT Credit. Evidence that the expiry date of the
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AT Credit shall have been extended to a date no earlier than
January 30, 1998.
D. Corporate Action. The Bank shall have received
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certified 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.
2, 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).
E. 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. 2 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. 2 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).
F. 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
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.
G. 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.
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H. 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.
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2 SHALL BE 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. 2 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. 2 by signing any such counterpart.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 2 to be duly executed as of the day and year first
above written.
ANNTAYLOR GLOBAL SOURCING, INC.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Senior Vice President
THE HONGKONG AND SHANGHAI BANKING
CORPORATION LIMITED,
NEW YORK BRANCH
By /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Assistant Vice President
